CIVIL PROCEDURE OUTLINE
Professor Page-Spring 2011
AN OVERVIEW OF PROCEDURE
Event à (Investigation) à Pleadings (Complaint, Answer) (Hawkins, Bell) à Discovery (Disclosure/Discovery) (Butler) (MSJ/Houchens) à Trial à Judgment (P/D MDV or Motion for Judgment as a Matter of Law à Appeal
GREEN= Pre-trial / BLUE = Post-trial
Rule 1: FRCP designed “to secure the just, speedy and inexpensive determination of every action.”
Terminology:
§ In pro. per.: Latin in propria person, meaning “in his or her own person” (rather than by agent or attorney) / Pro se: for him- herself
§ Deposition: witness questioned under oath before a court reporter by lawyers for all parties (usually at one of the attorney’s offices)
§ With v. Without prejudice
o With prejudice: has res judicata effect; precludes P from bringing case back to court
o Without prejudice: can potentially re-file in the future
§ Shareholder’s derivative suit: shareholder steps forward and sues directors or officers in name of corporation, alleging breach of some fiduciary duty. If successful, proceeds go to corporation.
o See Shaffer
§ Attachment: The seizing of a person’s property to secure a judgment or to be sold in satisfaction of a judgment (BLD)
§ Constructive Notice: Notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of, such as a registered deed or a pending lawsuit; notice presumed by law to have been acquired by a person and thus imputed to that person (BLD)
o Publication common: see Pennoyer
§ Jurisdiction (BLD):
o Diversity: a federal court’s exercise of authority over a case involving parties who are citizens of different states and an amount in controversy greater than a statutory minimum
o In Rem: a court’s power to adjudicate the rights to a given piece of property, including the power to seize and hold it
o Quasi In Rem: Jurisdiction over a person but based on that person’s interest in property located within the court’s territory
o In Personam: a court’s power to bring a person into its adjudicative process; jurisdiction over a D’s personal rights, rather than merely over property interests
§ Notice Pleading: A procedural system requiring that the pleader give only a short and plain statement of the claim showing that the pleader is entitled to relief, and not a complete detailing of all the facts (BLD)
o See Novick
§ Motions (BLD):
o Motion to Dismiss (demurrer): a request that the court dismiss the case because of settlement, voluntary withdrawal, or a procedural defect
§ Under FRCP, P may voluntarily dismiss (under Rule 41(a) ), or D may ask court to dismiss case (usually based on a defense listed under Rule 12(b))
§ Essentially saying that alleged facts, if true, do not form basis for relief
o Motion for Summary Judgment: post-discovery, pre-trial device; (FRCP Rule 56)
§ Request that court enter judgment without a trial because there is no genuine issue of material fact to be decided by fact-finder (evidence is legally insufficient to support a verdict in nonmovant’s favor)
§ No reasonable jury could find for the P based on facts as we know them now
o Motion for Directed Verdict: a party’s request that the court enter judgment in its favor before submitting case to jury because there is no legally sufficient evidentiary foundation on which a reasonable jury could find for the other party (Rule 50)
§ Party may move for judgment as a matter of law anytime before case is submitted to jury
a. Why should case ever get to this point if meritless cases can be settled before trial by MSJ?
i. What looks at pretrial stage like an evidentiary conflict often evaporates at trial, or witness changes story
b. If denied and case is submitted to jury, resulting in unfavorable verdict, motion may be renewed within 10 days after entry of the judgment
§ Judge doesn’t like to grant prior to jury consideration because if they grant, and issue is appealed and overturned, there will have to be a retrial; on other hand if judge grants Motion for JNOV, which is appealed and overturned, the jury verdict would simply be reinstated
o Motion for Judgment as a Matter of Law: a party’s request that the court enter a judgment in its favor despite the jury’s contrary verdict because there is no legally sufficient evidentiary bases for a jury to find for the other party
§ Also known as a Motion for Judgment Notwithstanding the Verdict (JNOV
§ Res judicata: “A thing adjudicated”- an affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been—but was not—raised in the first suit (BLD (2))
o Claim preclusion
§ Stare decisis: The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation (BLD)
o See Vasu (p.44)
§ Collateral Estoppel: The binding effect of a judgment as to matters actually litigated and determined in one action on later controversies between the parties involving a different claim from that on which the original judgment was based (BLD)
o Issue preclusion
§ Special appearance: 1) A D’s pleading that either claims that the court lacks personal jurisdiction over D or objects to improper service of process; 2) A D’s showing up in court for the sole purpose of contesting the court’s assertion of personal jurisdiction over the D (BLD)
§ Per Curiam: An opinion handed down by an appellate court without identifying the individual judge who wrote the opinion (BLD)
§ Interlocutory: Interim or temporary, not constituting a final resolution of the whole controversy (BLD)
§ Sue sponte: on the court’s own motion
§ Appear: Anything D does that indicates he will defend the action (can be letter to the court, Answer, etc.)
§ Magistrate: judge who handles non-dispositive issues within case; usually pertaining to discovery
§ Affidavit: a written document in which affiant swears under penalty of perjury that statements made are true (common in SJ motions)
§ Ejectment: legal action to recover damages and possession where a P has been wrongfully ejected from property
§ Mesne profits: Profits derived from the use of property which have accumulated during the period in which a P has been wrongfully been kept out of that property
§ Judgment as a Matter of Law: if you don’t make motion for JMOL during trial, you can’t make it after the verdict as a Renewed JMOL
o JNOV: old term for JMOL granted after verdict
o Directed verdict: old term for JMOL granted before verdict
§ Burden of proof: general term for burden of production and burden of persuasion
§ Burden of production: critical for questions of sufficiency of the evidence in SJ, JMOL or RJMOL
General Rules, Notes, and Comments on Civil Procedure:
§ Fairness of Civil Procedure; cross-section of:
o Accuracy: is this what really happened, and is the result reached consistent with substantive law?
o Efficiency: was the case handled with an appropriate amount of time/allocation of resources?
o * Acceptability: ie, if we know result is accurate, but don’t know how it was reached, it is less acceptable to the parties
§ Civil: distinguishes from “administrative” (many more adjudications take place in administrative agencies than take place in courts)
§ American legal system: based on adversary system (“duke-it-out” model)
o Parties have control over the shaping of their cases
§ Each side initially defines scope of its claim
§ Controls fact-gathering to support those claims (though procedure removes possibility of leaving some evidence out)
§ Has primary responsibility of presenting that evidence to the finder of fact
§ Court much more passive recipient of this evidence
o Europ
ed to file a charge with the EEOC (a condition precedent for sustaining a discrimination suit under the ADA) until after commencement of the action. In consequence of failure to exhaust administrative remedies, the court dismissed Complaint without prejudice. D moves for sanctions against P under FRCP 11.
I: Does P’s violation of Rule 11 warrant sanctions?
J: No; D’s motion for sanctions denied; Rule 11 (b)(2): attorney certifies…“claims, defenses, and other legal contentions are warranted by existing law”. The goal of sanctions under Rule 11 is deterrence of improper conduct; P demonstrated by acknowledgment of mistake that it understood it did not exercise due diligence, and court is convinced won’t happen again. (Though Rule 11 does not “permit the use of the ‘pure heart and an empty head’ defense” (quoting another case)). Sanctions should be reserved for exceptional cases where claim is “patently unmeritorious or frivolous.” (ie, substantive rather than procedural)
Other: Why is this case in federal court? Case arising out of federal law (Article 3, Section 2 of Constitution). As a condition of most civil rights claims under federal law, first have to file claim with EEOC and obtain a “right to sue” letter. Under 11(c), court has discretion to impose sanctions if 11(b) is violated, but how was motion for sanctions made if case dismissed? P probably suspended action, instead of withdrawing complaint (As D’s counsel, you would file MTD. Then serve motion for sanctions. P has 21 days to withdraw complaint. If not, then file motion for sanctions and court hears it.)
Bell v. Novick Transfer Co. (D. Md. 1955)
F: Infant P hit and seriously injured by automobile tractor-trailer owned by D company (operated by D agent). P alleges negligence or recklessness, but does not specify acts. Pursuant to 28 U.S.C. §1441 and 1446, D removed case to federal court. D moves to dismiss case, as Declaration fails to state a claim “upon which relief can be granted.”
I: At the complaint stage, does P need to allege specific acts of negligence?
J: No; D’s motion overruled. FRCP Rule 8 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” (see Form 9 in Appendix to Rules). D not entitled to “a more definite statement” pursuant to Rule 12(e) à further information should be obtained by Interrogatories under Rule 33 (or other discovery). Rule 11: lawyer has to conduct an investigation that is reasonable under circumstances. Sometimes, P satisfies this obligation of conducting investigation without shedding light on exactly what happened. FRCP: doesn’t want to spend a lot of time dealing with facts of the case at the pleading stage; better to deal with them during discovery. Case exemplifies “notice pleading”
Other: Note that D removed the case to federal court, though its claim may have been sufficient under state law. If it is a claim that could have been originally filed in federal court, D can remove to federal court if a nonresident in state where filed (So D’s were from elsewhere, and amount in controversy probably > $75K) / Corporations considered people subject to citizenship classifications. / Now that D’s MTD denied, next step to file an Answer
