Select Page

Civil Procedure I
University of Illinois School of Law
Winship, Verity

Civil Procedure
Professor Winship
Spring 2016
Federal Rules of Civil Procedure (FRCP) Rule 1
v  These rules govern the procedure in all civil actions and proceedings in the United States District Courts, except Rule 81. They should be construed and administered to ensure the just, speedy and inexpensive determination of every action and proceeding.
Ø  When looking at the application of a rule the last step will be to go back and ensure it satisfies the requirements of Rule 1 to ensure a just, speedy and inexpensive trial.
Outline of a Procedure in a Civil Action
v  1. Selecting a Proper Court
Ø  Case must be brought and tried in a court of original jurisdiction
§  Courts of original jurisdiction can be split into courts of general jurisdiction and inferior jurisdiction
Ø  State v. Federal Subject Matter Jurisdiction
§  Diversity of Citizenship—generally, parties must be citizens of different states or one party must be a citizen of a different country
§  Amount in Controversy—must be more than $75,000 to be in federal court
§  Case involving Federal Law
Ø  Venue
§  Must be brought in a district where either the plaintiff or defendant lives
Ø  Jurisdiction over subject matter may not be waived but personal jurisdiction may be waived by the defendant.
v  2. Commencing an Action
Ø  Commencement is by service of process and typically consists of summons
§  Personal Service
§  Substituted Service—registered mail
§  Publication—must be for a certain amount of time and reasonable for defendant to receive notice.
v  3. Pleadings and Parties
Ø  Plaintiff will serve pleadings (generally referred to as a complaint)
§  Degree of detail depends on the purpose the pleading is meant to serve
·         May serve as the basis for identifying the legal and factual contentions in order to dispose at an early time
·         May establish what the plaintiff proposes to prove at trial so his opponent will know what contentions he must be prepared to meet.
¨       If fully completed these two purposes require the parties to adhere to position taken
·         May just give general notice of opponent’s contentions
¨       Allows later stages to flesh out the issues and avoids delays and injustices
v  4. The Response
Ø  Motion to Dismiss
§  Allows a challenge to the court’s jurisdiction over subject matter, person, service of process or venue or failure to state a claim or cause of action.
Ø  Answer
§  May admit or deny factual allegations, show affirmative defenses, or introduce a counterclaim
v  5. Obtaining Information Prior to Trial
Ø  Pretrial discovery allows parties to exchange information about their claims and defenses and to prepare for trial
Ø  Methods include: Depositions, Written Interrogatories, Production of Documents, Requests for Admissions, and Physical Examination
v  6. Summary Judgment
Ø  Motion for Summary Judgment—discovery allows for a supplement of pleadings with additional documents to show that an apparent issue is decisive that the case will fail.
v  7. Setting Case for Trial
Ø  If case has not been otherwise resolved the case will be set for trial and given a date
v  8. The Jury and its Selection
Ø  In most cases for damages there is a jury trial and the jury must be empaneled to weed out impartialities
v  9. The Trial
Ø  1. Plaintiff’s lawyer makes the opening statement
Ø  2. Defendant’s lawyer may make an opening statement or wait until he/she presents his/her case
Ø  3. Call Witnesses—direct, cross, re-direct, re-cross
Ø  4. Present evidence through witnesses
Ø  5. Rests Case
Ø  6. Defendant may ask for a directed verdict if think plaintiff failed to meet the prima facie elements of the case
Ø  7. Defendant repeats steps 1-5
Ø  8. Once both parties rest both may move for a directed verdict
v  10. Submitting to Jury
Ø  Jury instructions are selected
v  11. Post-Trial Motions
Ø  Losing party may submit a motion for judgment n.o.v.
Ø  Move for a new trial on different grounds
v  12. Judgment and its enforcement
Ø  Judgment is the final determination of a lawsuit absent an appeal
v  13. Appeal
Ø  The losing party may appeal to the next court
v  14. Finality
Ø  If an appeal is denied or time for appeal expires the judgment is final
Anatomy of a Litigation
R. 7. Pleadings Allowed; Form of Motion and Other Papers
(a) Pleadings. Only these pleadings are allowed:
     (1) a complaint;
     (2) an answer to a complaint;
     (3) an answer to a counterclaim designated as a counterclaim
     (4) an answer to a crossclaim
     (5) a third-party complaint;
     (6) an answer to a third-party complaint; and
     (7) if the court orders one, a reply to an answer
R. 8. General Rules of Pleadings
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support.
(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 in the alternative or different types of relief
R. 9(b). Fraud or Mistake; Conditions of Mind
When alleging fraud or mistake the party must particularly state the consequences constituting the fraud or mistake. Malice, intent, knowledge may be alleged generally.
v  The central function of pleadings is to describe and define disputes between parties.
v  A pleading is a complaint, response to a complaint, counterclaim or response to a counterclaim (defined by R. 7)
Ø  Pleadings are subject to the limitations and conditions set forth in R. 8
§  Most importantly a complaint must contain:
·         Short and plain statement of grounds for jurisdiction
·         Short and plain statement of the claim showing that the pleader is entitled to relief
·         Demand for the relief sought
§  This can be completed by including:
·         Facts showing the defendant should be settling and that may induce sympathy for a client
·         Need to include enough information for effective discovery because discovery is based on the claims in the pleadings.
·         While it needs to be short, it needs to contain enough information to provide the basis for the rest of the action.
Ø  Conley v. Gibson
§  This was a challenge to a pleading on a R. 12(b)(6) motion
·         Even if all of the facts in the complaint are true, there is no legal relief
¨       i.e. You promised your friend you would vote republican in the last election and didn’t. There is no relief
·         All pleadings are challenged based on this rule
§  Rule: A complaint shall not be dismissed unless it appears beyond a doubt that the plaintiff could prove no set of facts which would entitle him to relief
Ø  Swierkiewicz v. Sorema
§  Rule: Complaint only needs to include a

ocess and want to ensure the necessity before engaging in discovery
Pre-Answer Motions
v  Before filing an answer the defendant may make a motion to dismiss or another motion based on R. 12(b), (e) & (f)
Ø  R. 12(e) Motion for a More Definite Statement. A party may more for a more definite statement to a pleading to which a responsive pleading is allowed which is so vague or ambiguous that the party cannot reasonably prepare a response
§  In these cases, the pleading is not lacking in detail but the defendant cannot understand what is being alleged on the facts of the complaint
§  This is aimed at making it possible for the defendant to answer
Ø  R. 12(f) Motion to Strike. The court may strike from the pleading an insufficient defense or a redundant, immaterial, impertinent or scandalous matter
§  This motion is rarely granted or used
§  Ex. It was used to strike down an entire complaint for being a wildly immaterial and possibly pathological complaint about wire-tapping antics of the U.S. government
§  Most of the time the court would just use R. 8 to strike down this type of complaint.
v  R. 12 Most Relevant Provisions
Ø  R. 12(b)—provides how to present a defense
Ø  R. 12(g)—provides how to join motions
Ø  R. 12(h)—provides how to waiver or preserve certain defenses
R. 12(b). How to Present Defenses.
v  Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But the party may assert the following defenses by motion:
Ø  (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join a party under R. 19.
v  R. 12(h) modified this R. 12(b)
Ø  Disfavored Defenses
§  Lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process
§  A defendant waives the right to present these defenses if the party does not raise the defense in the first response (First response may either be an answer or a motion under R. 12—motion under rule 12 is not required)
·         R. 12(g) further limits—a party that makes a motion under R. 12 may not make another motion under this rule raising a defense or objection that was available to the party but omitted from an earlier motion
Ø  Favored Defenses
§  Failure to state a claim upon which relief can be granted, failure to join a party under R. 19
§  These defenses can be raised in a pleading, motion for judgment on the pleading or at trial
Ø  Most Favored Defense
§  Lack of Subject Matter Jurisdiction
§  If a court determines at any time that the court lacks subject matter jurisdiction, the court must dismiss the action