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Civil Procedure I
University of Illinois School of Law
Kordik, Ellen R.

An Overview of Procedure
A.    The Idea and Practice of Procedure
1.      Locating Procedure
                                                  i.      Procedure guides an attorneys steps in litigation
                                                ii.      Procedure also mirrors our most basic notions of fairness and about the meaning of justice
                                              iii.      Procedure captures our ideas about the acceptable forms of settling disputes
                                              iv.      Procedure embodies not just the rules but the reasons why we do things
2.      Procedure, Lawyers, and Clients
                                                  i.      In order for legal representation to work, the legal system has to treat the lawyer’s choices as if they were Peter’s choices.
B.     Where can the suit be brought
1.      Misc.
                                                  i.      If there is a choice on were the suit can be brought it is the place most advantageous
                                                ii.      Convenience Factors:
1.      Located close to your clients home (cheaper)
2.      Court and place the lawyer is familiar with
                                              iii.      Tactics:
1.      Federal Judges appointed for life (they are not affected by political pressures)
2.      Smaller caseloads if filed in certain areas
3.      One lawyer may be more familiar and comfortable with federal or state court than the opposing lawyer
4.      Freedom to question jurors
5.      Get or Avoid a particular judge
2.      Subject Matter Jurisdiction
                                                  i.      Subject matter jurisdiction is the term used to denote whether a court can hear a particular type of dispute
                                                ii.      Two terms used to describe subject matter jurisdiction of a court
1.      General Jurisdiction, this means a court can hear any kind of claim unless there is a legal authority saying they cannot hear a certain kind of case
2.      Limited Jurisdiction Court, can hear cases only specifically authorized by statue
a.       All federal courts are courts of limited jurisdiction
3.      Subject matter jurisdiction of federal courts is based on two considerations
a.       If the claim “arises under” the constitution, laws, or treaties of the United States.
b.      If the parties to the claim are of diverse citizenship
 
 
 
                                              iii.      Hawkins v. Master Farms, Inc
1.      Facts
a.       Mr. Creal (Harkwins) lived most of his life in Missouri where he had his drivers license, title to car, and insurance to car. Also receive mail and check stubs in Missouri.
b.      Mr. Creal died as a result of accident. He moved to Kansas for about a year with his wife and took his clothing, furnititure and memoribalia with him contributed to household costs.
c.       Issue: Was Mr. Creal a citizen of Mo or Ka
d.      Mr. Creal was a citizen of Kansas at time of death
2.      Rule: An individual is a citizen of a state if he resides there with the intention to remain indefinitely.
3.      Personal Jurisdiction
                                                  i.      Personal Jurisdiction means that a particular court must have the power to render a judgment against a particular defendant
                                                ii.      Traditionally, obtaining personal jurisdiction over a defendant required notifying the defendant that he had to come to court to explain his conduct
4.      Venue
                                                  i.      Venue is the place where the trial will take place
5.      Service of Process
                                                  i.      Service of Process, we must begin the action and notify the defendant
1.      First we must file a complaint with the court, See Rule 3
2.      Second, must decide how the defendant will be notified,        See Rule 4, There are two ways:
a.       Waiver of Service, mail the complaint
b.      Summons, complaint must be delivered
C.     Stating the Case
1.      Complaint
                                                  i.      A complaint asks the formal legal system to use governmental power to grant plaintiff relief
1.      Those invoking the legal system bear the responsibility not to invoke it for improper purposes. See Rule 11
2.      What to be included in a complaint see rule 8 appendix form 9
                                                ii.      Bridges v. Diesel Service
1.      Facts:
a.       Attorney representing client in an employment discrimination case violated rule 11 (b) because she does not perform a competent level of legal research
2.      Rule:
a.       Rule 11 sanctions are designed to deter improper conduct and will only be applied in exceptional circumstances where the claim is patently frivolous. 
b.      Procedural error, such as not doing enough research, will not result in sanctions
                                              iii.      Bell v. Novick Transfer Company
1.      Facts:
a.       A minor child is inured when a tractor trailer truck crashed into the car in which he was a passenger sues the truck driver and his employer in federal court; and although the court applies state substantive law, it decides to apply federal procedural rules
b.      Rule:
                                                                                                                          i.            A Federal court is not required to apply a state well pleaded complaint rule even when the case originated in state court under state substantive law        
2.      The Response- Motions and Answers
                                                  i.      Response takes two forms
1.      Motion, attacking the summons and complaint in some way
2.      Or responsive pleading, usually called a pleading
                                                ii.      Pre-answer Motions Refer to Rule 12 a
1.      Motions are requests to the court that it do something or take some step
2.      Preanswers offer the defendant the possibility of getting an immediate dismissal of plaintiffs claim or significant delay before he refiles
3.      Motions take no position on the truth of falisity of the plaintiff’s allegations
                                              iii.      The Answer
1.      Responds to the to allegations of the complaint, Two Types:
a.       Type One, defendant denies the truth of one or more of the allegations of the complaint OR if the defendant does not know whether an allegation is true, he may deny the allegation until he finds out
b.      Affirmative defenses, assertion of additional matters that will wholly or partially defeat plaintiff’s claim     
c.       Occassionally a defendant may want to his own claims against the plaintiff, another defendant, or a new party. Such claims are called counterclaims, cross-claims, and third party claims. See Rule 13 (a,b,g,) and 14
d.      Answer establishes the battle lines for what may prove to be a long course of litigation. ALSO to answer the defendant must take a position as to the truth or falisity of the plaintiff’s allegations
                                              iv.      Amendment of Pleadings; Refer to Rule 15
D.    Parties to a lawsuit
                                                  i.      Misc.
1.      Who may be joined in a lawsuit? See rule 20
2.      Who must be joined in a lawsuit/ See Rule 19
3.      Are there persons who are not in the lawsuit who can join as parties if they choose. See rule 24
4.      Compulsory Joinder, is the bringing of a party into a lawsuit by the order of the court even thoseing the opposing party may not want the person there (See rule 19)
5.      In general, courts, call for joinder when t

o select the jury
                                              iii.      Once jury is selected the trial starts, Trial Steps, P then D the P rebuttal
1.      Opening Statement
2.      Examined
3.      Cross Examined
4.      Rest Case
5.      Ask for motion for judgment as a matter of law, Directed Verdict: this says in effect even if all the evidence that the Plaintiff has offered is true and all legitimate inferences from such evidence are made, there is no right to relief See Rule 50(a)
6.      Judgment as a matter of law, defendant makes the action. See Rule 50 (a)
7.      The losing party is not without hope, ten days of an adverse verdict, the loser may again move for a judgment as a matter of law, or a new trial, or both
a.       The motion for judgment as a matter of law asserts that even if all the winner’s evidence is true and the winner is given all reasonable inferences from the evidence, the winner is entitled to a verdict as a matter of law
8.      The losing party may also appeal a decision, ALSO a the loser may move to set aside the motion under rule 60 (b)
                                              iv.       There is a general agreement that if a party who has the burden of proof on an issue offers no evidence at all on that issue, judgment must be directed against him.
                                                v.      Norton v. Snapper Power Equipment
1.      Facts:
a.       A judge granted a judgment nothwithstanding the verdict in a strict liability cases involving a man who lost four fingers after a lawnmower accident
2.      Rule: A judgment withstanding the verdict cannot be granted after a motion for a directed verdict has been denied based on the same facts
a.       The test for a judgment notwithstanding (used during a trial when the evidence both sides has already been presented) is the same as a test for a directed verdict. The court must consider the evidence presented in the light most favorable to the nonmoving party and should grant the judgment only when the evidence points so strongly in favor of the moving party that a reasonable jury could not arrive at a contrary verdict   See Rule 50
H.    Former Adjudication
1.      Misc.
                                                  i.      Former Adjusication: A plaintiff who brings a case or a defendant who defends one, should not be able to try again if her is not satisified with the result.
1.      Issue easy to state but hard to determine which claims and issues should be permitted to be lititated a second time
                                                ii.      Rush v. City of Maple Heights
1.      Facts:
a.       One judge limited Rush’s recovery from the City for her injuries from a motorcycle accident to 100, and another judge ordered the County to pay more for personal injuries sustained during the motorcycle accident
2.      Rule:
a.       Whether or not injuries to both person and property resulting from the same wrongful act are to be treated as injuries to separate rights or as separate items of damage, a plaintiff may maintain only one action to enforce his rights existing at the time such action is commenced