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Civil Procedure I
University of Dayton School of Law
Shaw, Lori E.

CIVIL PROCEDURE
 
 
I.       BACKGROUND INFO. ON COURTS:
            A. HEIRARCHY:
U.S. Supreme Court
 
U.S. Ct. of Appeals                                            OH Sup. Ct. & 49 other S.Ct.
 
U.S. District Cts.                                               OH Cts. of Appeals
                       
Montgomery Commom Pleas Ct. – Prob. Div. – Juv. Div. – Family Div.
                        (Dist. Ct. County Ct.      Municipal Ct.) (exceptions to general jurisdiction:
                                                                                                branches of common pleas)       
B. STATE TRIAL COURTS:
1.     Courts of general jurisdiction. Which means they can hear virtually all cases with a few exceptions.
2.     They can hear cases of federal and state law.
3.     Can only go from a state supreme court to U.S. supreme court if the state supreme court is deciding a federal question arising under a federal law or the constitution because the U.S. supreme court is a court of limited jurisdiction.
C. U.S. FEDERAL COURTS:
1.     Courts of limited jurisdiction. Can’t hear every case. The constitution sets out what they can hear. 
a.      Federal Question Jurisdiction = Cases arising under the constitution or federal laws.
b.     Diversity Jurisdiction = Citizens of different states and controversy over $75,000 or more.
D. U.S. CT. OF APPEALS:
1.     Hears cases in panels of 3. Unless en banc, then all judges hear the cases.
2.     Reviews the law not the facts. The parties don’t try a case before the Ct. of Appeals, they argue a case before the Ct. of Appeals.
3.     Can petition cases from U.S. Ct. of Appeals to go to U.S. Supreme Ct., but very few are accepted.
E.     THREE ISSUES WHEN DECIDING TO FILE A SUIT:
1.     Subject Matter Jurisdiction: Can this particular court hear this particular subject matter?
2.     Personal Jurisdiction: Reflection of the power the court has over the defendant. Deals with the relationship between the defendant or the activities leading to the case and the court. 
a.      Factors to consider if both federal and state courts have jurisdiction, which is better.
1)     The case load of the court and the speed of the court system.
2)     The nature or the case. Federal judges are insulated from political pressures. Which judge will know more? If federal question, probably fed. Judge. If a diversity case, probably state judge.
3)     Tactical factors: opponents unfamiliarity with one of the systems.
4)     Idiosyncratic factors: where is there greater freedom to question jurors, ability to avoid a particular judge
3.     Venue: not a question of power but whether the court has statutory authority to hear the case.
 
II.    ROAD MAP FOR ANALYZING A CIVIL PROCEDURE PROBLEM:
1.     Personal Jurisdiction: First make sure that the court has “personal jurisdiction” or “jurisdiction over the parties.” You must check to make sure that: (1) D had minimum contacts with the forum state (whether the court is a state or federal court); and (2) D received such notice and opportunity to be heard as to satisfy the constitutional requirement of due process.
2.     Venue: Then, check whether venue was correct.
3.     Subject matter jurisdiction: If the case is a federal case, you must the ask whether the court has subject matter jurisdiction. Essentially, this means diversity jurisdiction or federal question jurisdiction.
4.     Pleading: Next, you must examine whether the pleadings are pro

iness
5.     Plaintiff has the burden of proving diversity of citizenship
6.     Question for trier of fact (jury)
7.     See Gordon v. Steele: Plaintiff was wrongfully diagnosed in PA, then went to college in Idaho and filed a federal malpractice suit against the PA doctors on basis of diversity of citizenship. Ct looked at the trend toward emancipation of 18 yr olds and plaintiff’s subjective intent to not return to PA at the time of her arrival in Idaho. Plaintiff was found to be a citizen of Idaho.
C.    Rule 11: “Stop, Think, Investigate and Research” (See Bridges v. Diesel Services, Inc.)
1.     counsel’s signature certifies the pleading is supported by a reasonable factual investigation and a normally competent level of legal research.
2.     goal of Rule 11 is to deter improper conduct so an attorney who quickly rectifies the problem should not be sanctioned.
3.     See Bridges v. Diesel Services, Inc.: P sued D under ADA before exhausting the administrative remedies. Case dismissed and D moves for sanctions under Rule 11. Court doesn’t grant sanctions because P’s attorney was quick to rectify the problem so no need for deterrence.
D.    Burden of Proof:
1.     There are three BOPs
a.      Burden of Pleading
b.     Burden of Production of Evidence
c.      Burden of Persuasion
-usually same person has all 3 BOPs
2.     Why does one person have BOP instead of another?