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Civil Procedure I
University of Dayton School of Law
Perna, Richard P.

a) The Idea and the Practice of Procedure
2) Locating Procedure
3) Procedure Lawyers and Clients
a) Where Can the Suit be Brought?

II. Which Court can hear the Case?
A. Subject Matter Jurisdiction
1.) 28 U.S.C. §§1331
i) grants Federal Courts Question Jurisdiction, or subject matter jurisdiction over any claim that arises under Federal Law.

2.) 28 U.S.C. §§1332
i) grants Federal Courts Diversity Jurisdiction, which is jurisdiction over any case where amount exceeds $75,000 and where case is between parties in 2 states; or between citizens of a state and citizens of a foreign country.
(1) Gordon v. Steele
(a) Holding: An individual is a citizen of a state if he resides there with the intent to remain indefinitely.

3.) Subject matter refers to ability of court to hear a particular type of dispute;
(1) Family court can only hear domestic cases
(2) General Jurisdiction Court can hear any type of case, unless statute requires that special type of case has to be held in a special court.
(3) Limited Jurisdiction Court: Set up by statute to hear only a particular type of dispute.
(a) All Federal Courts are Limited Jurisdiction
(i) Article III sec 2 of Const defines what jurisdiction limits Fed Cts have.
B. Personal Jurisdiction
1.) Determines which court the action may be brought. It is the same for both Federal and State courts within the same state.
2.) Courts can assert Personal Jurisdiction over Δ’s even when process has not been served on Δ within the state.
C. Venue
1.) 28 U.S.C. §1391
i) Venue involves question of the proper locality of the court that will hear the case.
(1) Venue rules will be applied when more than one court has both Subject Matter Jurisdiction and Personal Jurisdiction.
(2) In Fed System, cases first held in District Courts
2.) If all federal district courts (in same state) have subject matter and personal jurisdiction, 28 U.S.C. §1391 applies to determine where case will be held.

3.) Each state has own venue rules.
i) Case may be brought in district where one party or other resides or does business, or in district where the claim arose (where incident occurred).

D. Service of Process: Rule 4
1.) Π drafts complaint and files in court. At this time, Π must notify Δ of lawsuit.
2.) Rule 4 (2 types of notice)
(1) Waiver of Service
(a) Π mails Δ copy of complaint. Suit will proceed if Δ mails it back.
(b) This method is the least expensive and informal method.
(a) If Δ does not return Waiver of Service, Π will draft a summons, which is signed and sealed by court. Summons and complaint are then delivered to Δ by a process server.
(b) This is the most expensive and formal method.
III. Stating the Case


a) Usually Δ will use more of the Pre-Trial options to fight Π’s complaint
b) Must be made before Answer
c) Do not address substance of Π’s complaint
d) Do not require any factual development
e) Usually Δ will use more of the Pre-Trial options to fight Π’s complaint
i) Lawyer’s Responsibility
ii) Complaint
iii) Response
(1) Motion
(2) Answer
A. The Lawyer’s Responsibility for drafting a proper Complaint: Rule 11
1) A complaint is an application to the judicial system to use it s power to grant relief.
2) Rule 11 sets out the lawyer’s responsibility to determine that complaint is not being made for any improper purpose and that claim is well-grounded in fact and in law.
3) Rule 11 grants courts power to impose sanctions
a) Payment of opposing party’s legal expenses if party violates the rule
(1) Bridges v. Diesel Service, Inc
(a) Holding: Rule 11 sanctions are designed to deter improper conduct and will only be applied in exceptional circumstances where the claim is patently frivolous.
B. The Complaint
1) State courts have different requirements for what should included in complaint than the Federal Court does.
(1) Bell v. Novick Transfer Co.
(a) Holding: Federal Court is not required to apply a state well-pleaded complaint rule even when case originated in state court under substantive law
C. The Response – Motions and Answers
1) After Π notifies Δ of his claim, Δ is required by Federal and State civil procedure rules to respond. There are 2 ways to respond:
(1) Motions – Ask court to take some action in Δ’s favor:
(a) Dismiss Π’s complaint
(b) Change nature of suit
(i) Δ may have found reason why action can’t proceed in the court where Π filed it.
1. Court does not have jurisdiction
a. Rule 12(b)(1)-(5)
i. Subject Matter Jurisdiction
ii. Personal Jurisdiction
iii. Improper Venue
iv. Improper served Summons
2. Δ may believe Π has no right to relief under the substantive law of the jurisdiction where complaint was filed.
a. Rule 12(c)

(2) Answers – respond to specific allegations contained in the complaint. 2 types:
(a) If Δ believes allegation is untrue, or does not know if true, can deny allegation.
(i) Rule 8(b)
(b) Δ can make affirmative defenses
(i) Rule 8(c)
1. Waive right to make claim
2. Statute of limitations has expired

2) Δ can assert claims against Π.
a) Counterclaim: Under Rule 13, Δ may file counterclaim against Π. There are 2 types:
(1) A compulsory counterclaim arises out of the same action that gave rise to Π’s complaint.
(2) Permissive Counterclaim has no relation to action that gave rise to Π’s suit.

b) Cross-claims: if Π sues more than one Δ, the Δ’s can sue each other under Rule 13(g) as long as the cross-claims come from same action that gave rise to Π’s claim.

c) Third Party c

to develop as much factual information as possible before their suit can be dismissed.
2) There is a competing policy interest in disposing of cases before trial as often as possible in order to reduce the administrative costs of unnecessary trials.
3) Summary judgment allows a court to dispose of cases where trial is not necessary and would serve no purpose.

B. Rule 56 governs summary judgment. Motions for summary judgment can be made at any time, but are not usually granted until after discovery.
1) Rule 56(c) allows courts to grant a motion for summary judgment when the case presents “no genuine issue as to any material fact.” But it is not always easy to tell when there is a factual issue that justifies a trial. For example:
(1) Houchens v. American Home Assurance Co.
(a) Court granted summary judgment under Rule 56(c) b/c although Π could show her husband had disappeared and had been legally declared dead by a state court, she couldn’t prove that he had actually died or that he died by accident. Therefore, there was no material fact in her case against asshole insurance Co. that refused to pay on her husband’s insurance policy.

C. Other methods of pretrial disposition include:
1) Default judgment. Rule 55, if a Δ fails to answer the complaint or fails to defend his case, court will enter a judgment for Π.

2) Dismissal. Rule 41(b)- If Π doesn’t obey court order during pretrial proceedings, court can dismiss case. Under Rule 41(a), Π can apply for a voluntary dismissal.

D. Methods for streamlining trial include:
1) Request for admission. Rule 36 – A party can seek admission of the truth of certain facts or the acknowledgment of the genuineness of specific documents.

2) Pretrial conference. Rule 16 – Court can order conference between the parties. Parties can use this conference to discuss settlement terms.


A. Fewer than 5% of federal cases go to trial. However, trial process exerts an influence over the pretrial process in that the parties’ estimation of the likely outcome at trial affect their approaches to vital preparation and settlement.

B. There are a number of steps in the trial process:

1) The court notifies the parties of the trial date.
2) Jury is selected.