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Civil Procedure I
University of Dayton School of Law
Cox, Jeannette

1)      Introduction to civil Procedure (p. 1-28); S: 1
a)      Major Functions of the Court
i)        Determine the legal principles that bear on the case
ii)       Find the facts that are relevant to these legal principles
iii)     Apply the law to the facts to arrive at the decision
b)      Systems to Perform These Functions
i)        Adversarial
(1)    Parties are largely in charge of the presentation of the case and the decision makers (judge and jury) remain passive and neutral.
(2)    Used in the U.S.
ii)       Inquisitorial
(1)    Judge has more control over the development and presentation of the case – judge driven.
(2)    The court rather than the parties’ lawyers takes the main responsibility for gathering and sifting evidence, although the lawyers exercise a watchful eye over the court’s work.
(3)    No distinction between pretrial and trial, between discovering evidence and presenting it.
(4)    Less motivation for judge to create new legal theories and move the law in a new direction.
(a)    An advocate working in an inquisitorial system will seldom undertake an extensive search for better evidence to bolster a weak case.
(5)    Used in Continental Europe
c)       The American Legal System is Unique from Other Common-law Countries in the Following Ways:
i)        No other country routinely uses juries in civil cases
ii)       American lawyers are given very wide latitude for exploration of potentially relevant information and evidence through the rules of discovery.
iii)     American lawyers have more latitude in the presentation of their cases
iv)     Most other countries allow the winning party to collect attorney fees from the losing party. In the American legal system, each party generally pays their own and cannot recover that expense from the losing party.
v)      Political affiliation plays a large part in the judges that are selected. In most other common-law countries, judges are selected on the basis of professional standards.
d)      Goals of the Federal Rules
i)        Efficiency
ii)       Fairness
iii)     Simplicity
iv)     Consensus
v)      Uniformity
e)      Metrics for Judging Quality of Procedural Rules
i)        Efficiency Metric
(1)    Tradeoff between the costs of error and the costs of process to safeguard against error.
ii)       Rights-based Metric
(1)    Defines the value of accuracy in terms of the moral value of protecting individual rights
iii)     Process-based Metric
(1)    State has the obligation to respect the dignity and autonomy of persons affected by adjudication.
f)       Points at Which a Judge can Dispose of a Case
i)        Pleadings stage
(1)    Motion to dismiss (demurrer)
(a)    Failure to state a claim for which relief can be sought
ii)       Discovery stage
(1)    Motion for summary judgment
(a)    No genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
iii)     Judge/Jury stage (beginning, middle, and end of the trial)
(1)    Judgment as a matter of law (directed verdict)
(a)    No genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
2)      Pleadings
a)      Three types of pleadings
i)        Complaint
(1)    Document filed with the court and served to the defendant to give notice of a suit being brought against them.
ii)       Answer
(1)    The defendant’s response to the plaintiff’s complaint.
iii)     Reply
(1)    The plaintiff’s response to the defendant’s answer.
b)      The Complaint (p. 29-58) Rules 8(a), 8(d), 8(e), 9(b), and 84; Forms 7, 10, 11
i)        A case is commenced by filing a complaint with the court.
ii)       Elements of a Complaint (Rule 8(a))
(1)    A short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim need no new support;
(a)    The complaint does not have to contain the legal grounds on which it rests
(b)   Lengthy overpleading is prohibited
(c)    Must give the material facts of time and place
(2)    A short and plain statement of the claim showing that the pleader is entitled to relief; AND
(3)    A demand for the relief sought, which may include relief in the alternative or different types of relief.
iii)     Conley v. Gibson
(1)    The following requirements must be met:
(a)   Substantive
(i)      Is there a basis for this claim in the law?
1.       A pleader’s complaint cannot be dismissed unless it appears beyond a reasonable doubt that the pleader could prove no set of facts entitling the pleader to relief
(b)   Formal
(i)      Does the complaint give sufficient notice?
1.       A complaint must give the defendant fair notice of the claim and the grounds on which it rests.
iv)     Swierkiewicz v. Sorema N.A.
(1)    A complaint need only a short and plain statement; don’t need to plead a prima facie case.
(a)   Only dismiss if it is clear that no relief could be granted under any set of facts that could be proven
v)      Bell Atlantic Corp. v. Twombly
(1)    The pleader must plead facts that include those among the realm of plausible possibilities in order to survive a motion to dismiss.
vi)     We do not want courts to dismiss legitimate claims, but we also don’t want an inefficient legal system full or frivolous claims.
c)       Serving the complaint
i)        Plaintiff must
(1)    File complaint with the court AND
(2)    Serve the defendant with a copy of the complaint and a summons
(a)    Summons is issued by the clerk of the court and tells the defendant what to do in response to the complaint
d)      Serving the complaint
i)        Plaintiff must
(1)    File complaint with the court AND
(2)    Serve the defendant with a copy of the complaint and a summons
(a)    Summons is issued by the clerk of the court and tells the defendant what to do in response to the complaint
(3)    Service Requirements:
(a)    Summons must be served with complaint, within 120 days of filing.
(b)   Service by any person 18 years old and not a party to the complaint; or by a US Marshal, or a person designated by the court.
(4)    Waiver of Service
(a)    Corporation has duty to avoid unnecessary expenses of service.
(b)   Plaintiff may notify Δ corporation and request waiver of service.
(c)    Failure, without good cause, to waive incurs expenses and reasonable exp

)    Rules 12(b)2-5 are waived if they are not preserved through either an answer or a motion.
(4)    A Rule 12(b)(1) defense can never be lost.
(5)    Rule 12(b)(6) and Rule 12(b)(7) defenses are limited if they are not preserved through a motion or answer, but they are not barred.
(6)    A defendant may assert as many defenses as are appropriate.
(a)    Rule 12(b): Motion to Dismiss for…
(i)      Lack of subject-matter jurisdiction
1.       No power over the subject-matter of the case
2.       Never waived
(ii)    Lack of personal jurisdiction
1.       No power over me
2.       Waived if not raised
(iii)   Improper venue
1.       Case was filed in the wrong court
2.       Waived if not raised
(iv) Insufficient process
1.       The documents or the process of filing was insufficient
2.       Waived if not raised
(v)    Insufficient service of process
1.       The service of the documents was inappropriate
2.       Waived if not raised
(vi) Failure to state a claim upon which relief can be granted
1.       The complaint failed to state a claim for which relief can be granted
2.       The court must look only at the “four corners” of the complaint and take everything the complaint contains as true to make its determination
a.       Look at formal and substantive sufficiency
(vii)Failure to join a party under Rule 19
1.       A party that was required to be a party in the suit was never joined
h)      Responding to the Complaint: The Answer (p. 71-77); Rules 8(b)-(f)
i)        If the defendant chooses not to file a motion or the court does not grant the defendant’s motion, the defendant must file an answer.
ii)       King Vision Pay Per View, Ltd. v. J.C. Dimitri’s Restaurant, Inc.
(1)    There are three possible responses made to a plaintiff’s complaint
(a)   Admit the allegations
(b)   Deny the allegations
(c)    State a disclaimer
(i)      Must be made in the objective and subjective good faith demanded by Rule 11 and in the express terms of Rule 8(b)(5)
1.       Pleader has the benefit of a deemed denial
iii)     Carter v. U.S.
(1)    The failure to plead an affirmative defense in the answer works as a forfeiture only if the plaintiff is harmed by the defendant’s delay in asserting it.
3)      Discovery
a)      The Mechanics of Discovery (p. 104-118; Rules 30, 31, 32, 33, 34, 35, 36, 45 26(a)(1), 26(f)(1), 16(b), 26(e)
i)        Primary function of discovery
(1)    Inform the advocates of both sides
ii)       American Discovery System v. Global Discovery Systems
(1)    American Systems are: