Civil Procedure Simon-Kerr Fall 2015
An Overview of Procedure (1-12, 17-25, 29-45, 52-58)
a) The Idea and the Practice of Procedure
i) Locating Procedure
ii) Clients, Lawyers, Procedure, and Strategy
b) Where can the Suit be brought?
i) Personal Jurisdiction
ii) Subject Matter Jurisdiction
● Hawkins v. Masters Farms, Inc. (6)- Kansas/Missouri state citizenship debate after death in auto accident
○ Domicile- Established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there
○ 12(b)(1)- Lack of Subject Matter
iii) Service of Process
c) Starting the Case
i) The Lawyer’s Responsibility
ii) The Complaint
● Bell v. Novick Transfer Co (18)- Injured infant in trucking accident. What info contained in complaint is sufficient to state a claim?
○ 12(b)(6); 8(a)
○ Rule 8(a)
■ Establish jurisdiction
■ Short statement of claim showing entitled to relief
■ Demand for relief sought.
iii) The Response- Motions and Answer
● Pre-answer Motions
○ Take no position on truth/falsity of allegations
○ Several options
■ Reasons why it should not proceed (typically jurs)
■ π has no claim to relief
○ Rule 12 – Motion to Dismiss
○ Rule 8 – Pleadings (Claim for relief, Defenses, Affirmative defenses, Pleading to be concise and direct, Construing pleadings)
■ ∆ denies the truth of the allegations (one by one)
■ ∆ asserts additional matters that may defeat π’s claim (counterclaim, cross-claim, 3rd party)
■ Do nothing (which ends in default judgment)
iv) Amendment of Pleadings- one or consent from the ct or other party if more than one needed
● Rule 7(a) Pleadings
● Rule 15(a) Amendments Before Trial,
● Rule 15(b) Amendments During or After Trial,
● Rule 15(c) Relation Back
d) Factual Development–Discovery
i) 26(a)(1) (Initial Disclosures), 26(b)(1) (Scope in General), 27 (Depositions), 28 (Person Before Whom Depos May Be Taken), 29 (Stipulations), 30 (Oral Examination), 31 (Written Question), 32 (Depos in Court Proceedings), 33 (Interrogatories), 34 (Producing Documents), 35 (Physical and Mental Examinations), 36 (Request for Admission), 37 (Discovery Sanctions), 45 (Subpoena/Records)
ii) Butler v. Rigsby (31)- ∆ requested documents following an accident,
Issue- whether this was privileged information
● Relevant info that may show bias or financial incentive is discoverable. Privileged info is not usually discoverable even it if it relevant. Judges have a lot of discretion in deciding what is necessary/discoverable.
● Rule 26
e) Pretrial Disposition–Summary Judgment
i) Houchens v. American Home Assistance Co (36)- Insurance dispute,
Accidental death. Can wife recover?
● π must meet burden of proof for MSJ to be granted
● Rule 56- Court grants summary judgment if the movant shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law
○ You can file at any time within 30 days after the close of all discovery
i) Norton v. Snapper Power Equipment (42)- Lawn mower deadman device
Failed to engage, lost 4 fingers
● π are not entitled to a verdict based on speculation and conjecture
● Judgment notwithstanding the verdict—Judge can overturn the jury’s verdict if the judge is compelled that jury did not properly apply the law or some aspect of the law
ii) Rule 50(a) Judgment as a matter of law: directed verdict
iii) Rule 50(b) Renewed Motion After Trial
h) Appeals- addressed the correctness of trial rulings
i) Apex Hosiery Co. v. Leader (53)- Sherman Antitrust Act. ∆ object to release of documents during discovery. Judge rules must be turned over to π. Could not appeal b/c discovery ruling was not a final jmt.
● Only a final judgment can be appealed (exception: interlocutory appeals)
ii) Interlocutory Appeal- a ruling within a case that is not a final judgment.
Occasionally these can be heard on appeal
iii) Appellate Courts should scrutinize trial ct rulings in 2 ways:
● Findings of fact should be affirmed unless “clearly erroneous”
● Rulings of law should be subject to reversals if wrong in any respect if there is genuine reason to believe the error affected the outcome of the lawsuit
(65-132, 148-174, 180-188)(Supplement: 415-437)
a) The Origins→ unlike subject matter it can be waived because it’s about fairness
iii) Rule 12(b)(2)
iv) Pennoyer v. Neff (66)- noncitizen of state served by mail. Law states must serve personally when not a citizen of the state or ct has no jurisdiction over party.
(1) Under the Due Process Clause, no person is subject to the jurisdiction of a court unless she voluntarily appears in the court, is found within the state, resides in the state, or has property in the state that the court has attached.
(2) State power, notice, property are addres
operty in the state to have jurisdiction in a particular place—minimum contacts are a must
iv) Specific Jurisdiction: The Modern Cases
(1) Based on minimum contacts in state
(2) World-wide Volkswagen Corp. v. Woodson (103)- π bought car in NY, crashes in OK, catches fire and burns wife and children. Prod. liab. case brought.
(a) Foreseeability not sufficient benchmark for personal jurisdiction
(b) ∆ conduct in a state determines personal jurisdiction
(c) 14th amendment- due process clause
(d) There is malleability of jurisdiction, should focus more on interest of the state.
(e) To be sued in OK the ∆ must have purposely availed itself to doing business in OK by performing services in the state and evidence that the cars would be purchased by consumers in OK.
(f) Traditional notions of fair play and substantial justice
(i) The burden on the ∆ of defending the lawsuit in the forum state
(ii) The interest of the forum state in the ligation, or in exercising judicial power over the suit.
(iii) The interest of the π in obtaining complete and effective relief (at least to the extent that interest is not adequately protected by the π’s ability to choose the forum initially.)
(iv) Interstate policy interests
(3) Burger King Corp. v. Rudzewicz (112)- Two friends agree to set up franchise. Negotiate with Michigan and Miami offices/headquarters. Sign agreement and fall behind in rent. BK sued in FL fed ct under diversity jurisdiction.
(a) The court must look to the purposefully directed activities of ∆ toward the forum state and whether the harm arising or relating to those activities caused the litigation.
(b) Fair play and substantial justice factors