Civil Procedure I Outline

I. Introduction to Civil Procedure

Hypothetical
–At least a two-car crash, in which both cars are damaged and both drivers injured—

Substantive Law
Tort/Traffic Laws
–“Fault”
–Remedies

Procedural Law
–How to file, etc??
–This is what we will concentrate on in Civil Procedure

HOW TO FILE
Cost of Litigation
American Rule—each person is responsible for his or her own costs of litigation
English Rule—the loser inherits the cost of both sides

–The English rule is typically used throughout Europe
–The costs of the court may be taxed to the losing party in the lawsuit (FRCP §1920)
Pleadings and Motions

Complaint—Drafted copy alleging facts and situation of lawsuit
· “Notice Pleading”—concept that it does not take a lot of specific facts to allege a complaint—only enough information to “put D on notice” that he is being sued and for what
· No need to state law. Must only include the theory upon which you are suing (negligence, strict liability, tax statute, etc)
· Demand for relief (remedies)
· Request for a jury
· Names of the parties involved
· The complaint must be filed at the courthouse and also delivered to the defendant

Defendant’s Responses
Answer—matching response to P’s complaint stating D’s position
· D must admit to any true factual allegations made by P in complaint or deny them
· Only disputed facts must be proven by P
· Can add affirmative defenses in the answer
· Counter-claims can be made as well

Motion—filed in place of an answer
· A motion is active—asking the court to rule on an issue (most likely asking the court to dismiss the complaint)
o Jurisdiction
o Did not state a cause of action
o Improper Service

Discovery
The process used to build a case. It is the largest portion of the case by far.
· The judge has very little to do with discovery, it is primarily handled by the parties’ attorneys.
· Discovery is where most abuses occur in the litigation process
· Experiments have begun to make judges more managerial in the process of discovery
· At this point witnesses come into play
· The rulings in discovery are very broad. Attorneys can request nearly anything that is mildly relevant to the case.

Motion for Summary Judgment
Given the opportunity for discovery are there any disputed facts now??
· If not, then the case can be decided now by law
· Are also “partial summary judgments”

– Stages of Civil Litigation
o Pre-Filing Review
o Pleadings and Preliminary Motions- notice pleading- where you file the lawsuit, the Def can then file a Def Response at which point the case goes on- the Def can also test the complaint and stop the lawsuit there if possible (demurrer) – some cases can end here
o Discovery- the largest part- when the facts are gathered- has the potential for great cost and abuses, because it is done outside the court with no judicial oversight- extremely cost and time intensive
o Final Trial Preparation- some lawyers can test the complaint thru Summary Judgment
o Trial
o Post-Trial Motions- the Def, if they lose, can again attack the way the case was tried- same with Plain- this is where Final Appeal can take place- 80-90% of appeals are affirmed- usually the typical case gets ONE appeal
§ Occasionally there is an Interlocutory Appeal- where one side demands some important documents from the other side
o Administration

I. Jurisdiction: Which court?
Forum for Lawsuit
2) Geographic Location—Personal Jurisdiction
i. Which state (if two people from different states)?
1. Not likely allowed for P from out-of-state to sue D in P’s home state
2. Likely is allowed if P sues out-of-state D in D’s home state
ii. Venue—Within a single jurisdiction the selection of court is a venue choice.
3) Type of Court—Federal vs. State Courts
i. Federal Subject Matter Jurisdiction
1. Diversity—citizens of two different states (plus other qualifications)

For a court to assert jurisdiction it must have:
1. Venue,
2. Personal Jurisdiction, and
3. Subject Matter Jurisdiction.
All three must be there for a court to be appropriate in a situation (it could be only one court with the proper jurisdiction in a situation or it could be hundreds).

Personal Jurisdiction—sometimes called “territorial” or “geographic” jurisdiction
· Based on due process (fair procedures)
· “Long-Arm Statutes”

Subject Matter Jurisdiction—question of federal vs. state courts
· The worry is usually whether the federal court has subject matter jurisdiction because the state courts have very broad jurisdiction
· Federal Court system has jurisdiction in only certain types of cases (as the founders intended)
· Some states have divided their courts based on subject matter (family courts, civil appellate and criminal appellate courts, etc.)
· Article III of the Constitution and certain federal authorizing statutes (diversity of citizenship and federal question will be looked at by us)

Venue—does not rise to the constitutional level—we will not examine closely
· Given that there are a specific number of courts with proper jurisdiction, which court is the appropriate venue for the case to be heard?

A. Personal jurisdiction—question of geography- which court?—constitutional and statutory analysis- Based on due process (fair procedures)

Old English law required the sheriff in a jurisdiction to go and arrest the defendant and hold him until the end of the trial. This was to:
1. Served as notice
2. Held individual in possession of the jurisdiction

Eventually gave rise to things like bail, etc. These notions generally carried over to colonial courts. The territorial jurisdiction is still tied very much to notice. By being given a summons a person was then appropriately notified and put under control of the court in that area.

1. If D has personal contacts with the forum state (if so, requires the Minimum Contacts Test)
2. If D consents (consent theories survive Pennoyer)- can be done in several ways: put in a pre-dispute contract, by doing a certain amount of business in a state (basis of consent), misbehavior when litigating
3. If D (natural person, as opposed to an artificial entity like a corp) is “tagged” in a state (caught in that state- survived from Pennoyer)- tag jurisdiction- you can’t tag a corp

1. Within which borders of which state may an action be brought?
a. More than one state may have personal jurisdiction
b. Does the state or Fed have authority to hear this case?
2. P chooses the court, so questions of p.j. are usually raised by D
a. P lawyers need to consider all of the various forums (if diff states are involved, where you try it, etc)
3. Incorporates the 2 notions of fairness and state sovereignty
4. When is the objection for PJ raised?
a. D must raise objection immediately (if they waited, it wouldn’t seem like much of an inconvenience)
b. Must be raised in the first response, or the defense is raised per 12(h)
c. If the objection is placed in a pre-trial motion, it may not be amended
d. If the objection is to be placed in an answer, 20 days allowed for amendment—if answer is the first response and D doesn’t include p.j. but wants it later, he has ONLY 20 DAYS to amend
e. If D doesn’t show up, a Default Judgment is made against them- go