Civil Procedure I Outline

Civil Procedure Outline, Fall 2004
1.      Introduction
a.       CivPro is about how-to begin a suit and how it works. We use Fed. Rules of Civ. Pro.—many states have adopted it, NY is NOT one of them. CivPro—the how-to of litigation; also CivPro is procedural law, not substantive law.
b.      Case we work with this semester and next—Lucy Lockett, former emp’ee of Tropics North, Inc, who got bit by non-poisonous snake.
c.       Federal courts can hear disputes bet. citizens of diff. states, but limited by subject matter. Subject Matter Jurisdiction v. Personal Jurisdiction.
d.      Fed courts are created by Art. III of US Const., which lists upper-bound of federal court system; Congress can’t go past that limit, but can go under that limit.
e.       Why file in federal ct? Speed, diff. mix of jury, other atty might not be as knowledgeable. Also if a federal Q exists. Δ has right to remove case to federal court if you file in state court and he is not from that state.
f.       Venue—where accident occurred; Corp has two citizenships—(1) where certificate of Incorp is (state where incorporated) and (2) principal place of business.
g.      3 stages of litigation—PleadingàDiscoveryàResolution
h.      Don’t forget to exhaust all you admin. remedies b4 filing suit in court or you could get sanctioned under Rule 11!!! And don’t take all that your client tells you @ face value—atty is responsible to investigate!!
i.        Once a Δ has found out about clm against him, he can attack it with pre-answer motionsàif fails, then answer complaint, poss. w/ more defenses OR use answer, say no and/or make more complaints against Π.
                                                  i.      Six types of Pre-answer motions: (1) ask court to decide motion, like federal jurisdiction; (2) complaint fails to state a claim upon which relief can be granted (REMEMBER, you can’t sue for a cause, like telling him to say sorry or b/c you don’t like the color of his car; it must be $$ usually); (3) complaint is vague and Δ unsure for what he is being sued for; (4) see Rule 12(b) for more.
                                                ii.      Why pre-answer motion? Before you invest time into answer, try the easy way out; if overruled, then you must formulate answer w/ care as not to loose defenses.
j.        Oh, yea, don’t sue the whole world in one suit; why? Try fitting them and all the atty’s in one court room—yea, right! (A la BMI Music case.)
k.      Privileged info (i.e. patient records) trumps over discovery most of the time.
l.        Parties to suit: Rule 20—permissive parties where Π chooses who to make co-Π/co-Δ, but not mandatory to join; compulsory—ct orders party in; Intervention—rule 24—3rd party can intervene if allowed to, as of right or permissive (common in land use litigation); class actions—rule 23
m.    Discovery—5 ways: Freebie (Rule 26(a)(1)—certain info must be released), Production of docs (Rule 34 and 45(a)(1)(C)), Oral depositions, Written interrogatories (Rule 23) and Physical/Mental exams (Rule 35). See Rule 26 in general.
n.      Summery judgment—“Even if all the facts were true, then the OP does not satisfy all elements of complaint;” sometimes, the motion is made on a losing basis to see what OP has in terms of evidence (sneaky, eh?); rarely granted b/c dispute of facts almost always exists.
o.      Can’t appeal interlocutory (non-final) decisions, such as summary judgment lost by Δ.
p.      Granting 12(b)(6) motion means you can’t STATE a clm; summary judgment—can’t prove a clm; j.n.o.v.(judgment notwithstanding the verdict)—didn’t prove clm (“the case should have never gone to jury—I made a big lgl mistake and taking verdict back”—judge says), but done after verdict announced; directed verdict, s/a/a, but done right after Π rests (“Π, your proof was lacking”).
q.      When pleading a clm, must state ALL of them, else later precluded if arising from same issue (issue preclusion).
2.      Personal Jurisdiction (the first issue)
a.       Is based on 3 issues—Power, Consent and Notice; The power of one court to render binding judgment on someone who may have never been in the state.
b.      The Test to use (use everything, even if n/a—but state so!!):
                                                  i.      Verify that Long-Arm Statue applies; if not, STILL continue:
                                                ii.      Sufficient (buzzword!!) Minimum Contacts
1.      Stream of Commerce (has Δ placed product into stream of commerce?) *W/ Internet cases, ALWAYS YES (b/c presence of I-net is omnipresence and everyone can access it) AND;
2.      Purposeful availment (of forum state) (did Δ intend product to reach forum state?—like deliberate targeting?) AND;
3.      Reasonable foreseeability (could have Δ expected to be hailed into ct of forum state?)
a.       (Test #i.2 and #i.3 are similar when writing answer)
                                              iii.      VIOLATE Fair Play & Substantial Justice (3I. C.E.A.B.) ?
1.      extent of purposeful interjection into forum state;
2.      burden on Δ to defend in forum;
3.      extent of conflict w/ the sovereignty of the Δ’s state;
4.      the forum state’s interest in adjudicating the dispute;
5.      most efficient judicial resolution of the controversy;
6.      importance of the forum to the Π’s interest in convenient and effective relief;
7.      existence of alt. forum (can action be brought in another state?).
a.       (DISCUSS all of these factors; dismiss ones not applicable)
b.      (Quote to Asahi some of these factors) (balance these factors—not one is all controlling).
c.       On midterm, you wrote “would be” instead of “violate” the fair play/sub. justice thingy—DON’T mix it up—get you principles straight—“Would the haling in of the Δ violate fp/sj?”
d.      F.R.C.P Rule 12 applies here. §12(b)(2) specifically—dismiss for lack of personal jurisd.
e.       In personam jurisdiction
                                                  i.      Rule/Def
1.      Power of the court to enter judgment over person.
2.      The Δ MUST be served in state where case is to take place, which means he can be visiting just momentarily, but as long was w/in states borders;
3.      OR have minimum contacts, as per Int’l Shoe (goes to specific/general jurisd).
4.      Constructive notice alone NOT ok—i.e. publishing in newspaper.
5.      However, attaching land BEFORE suit + constructive notice OK (see b, supra).
6.      Another way to get jurisdiction: appoint an agent in state or consent to it (yea right, stupid—don’t do it!)
                                                ii.      Examples
1.      B/c of Full Faith and Credit clause in US Const, one’s states rulings must be entered in another state—but Δ can attack it collaterally b/c he can say due to lack of process or PJ does not exist, not valid.
2.       “Special Appearance” is allowed by almost all jurisdictions—as not to subject yourself by appearing regularly in court, but to defend against in personam jurisdiction w/o “being” there officially; but if ct. sees that you are trying to defend on the merits of case also, they may say you’re subject to personal jurisd.
3.      “Status” relationships, like for divorce, Δ need not be present in state—can serve outside of state, but person bringing action must be domiciled in that state; HOWEVER, child support or alimony are distinguished from divorce—NEED Δ to be served w/in state.
4.      Collateral attack—if Δ defeated and litigated in that state, he can’t put suit on again—res judicata b/c already litigated and also, issue preclusion. But if never defended suit and later the Π tries to get it enforced in another state, Δ can do a collateral attack and say the other ct. had no personal jurisd. and therefore that judgment can’t be executed.
5.      Ex. Wyoming owner of GM car purchased in Wyoming, clm occurred in Wyoming and Π chose to sue GM in NY. Under Pennoyer, no can do, but under Int’l Shoe—sure, as long as GM has such a presence in NY that subjects them to General Jurisd.(?).
a.       Contrast: Driver D on vacation, driving through state X, hits pedestrian; D never been in state X—so ped. can only sue on specific clm—that of the accident, and nothing else (i.e. tort for D’s child pestering ped., etc).
6.      A CORP can be SUED IN 2 PLACES:
a.       STATE OF INCORP(s);
b.      Where it is HQ’d (DON’T USE THESE NAMES ON TEST!)
                                                                                                                          i.      NERVE CENTER TEST
                                                                                                                        ii.      MUSCLE CENTER TEST