An Overview of Procedure
1. Process after an accident occurs:
a. May not go to court if
i. No lost wages; no significant damages
ii. Settle out of court
iii. Cannot find lawyer who will take case
b. If it goes to court, the P will
i. 1st find lawyer
1. Divide responsibilities b/w lawyer and client
a. Client decides overall goals
b. Lawyer decides strategy using his knowledge of procedure
2. Lawyer’s actions viewed as actions of client; if they don’t agree, then three possible resolutions
ii. Determine where to file suit: Jurisdiction (Must satisfy both in order to be heard in Fed Court)
1. Personal Jurisdiction – A court must have authority over defendant
2. Subject matter jurisdiction – Authority of the court over the subject matter of the dispute
a. Hawkins v. Masters Farms, Inc (Kansas, 2003)
i. Issue: Where was P a resident when he died
ii. Rule: Domicile – (1) Where is physical residence; (2) Intent to remain
iii. Holding: No SMJ, b/c P is citizen of same state as D, so case is dismissed (Rule 12(b)(1))
b. Shared jurisdiction: Both state and federal have subject matter jurisdiction when §1332 requirements are met
c. Exclusive federal jurisdiction: § 1331 gives fed. Dist. Cts. Original jurisdiction over civil actions under the Constitution, laws and treaties of the US
d. Exclusive state jurisdiction
i. Citizens of same state
ii. Or different states but less than $75K
e. Why prefer federal court?
i. More independent – lifetime judges instead of elected judges
ii. Possibly more favorable case law than a particular state’s
iii. Broader jury pool
3. Venue- “Place of trial” – Venue rules attempt to allocate business among those courts that have subject matter and personal jurisdiction. A suit lies open to a D challenge unless the court has subject, personal, and venue.
a. FEDERAL VENUE §1391(a): Venue is proper where the defendant resides, judicial district where the substantial part of events occurred
4. Service of Process: Either waiver of service (inexpensive method) or summons (take to clerk of the court to signe and seal – rule 4)
iii. Stating the Case:
1. The lawyer’s responsibility: Rule 11 – Representation
a. Legal representations (11(b)(2)) – claims, defenses, and other legal contentions must be warranted by existing law or nonfrivolous argument after reasonable inquiry.
b. Factual representations (11)(b)(3)) – factual contentions must have evidentiary support or be likely to have evidentiary support after a reasonable opportunity for discovery
c. Sanctions – Rule 11(c)
d. Bridges v. Diesel Services, Inc. – ADA requires a P to exhaust all administrative remedies before filing in federal court.
i. Rule 11 sanctions denied b/c their primary purpose is to deter wasteful proceedings – here the Ps attorney realized the mistake and remedied the situation. Complaint dismissed w/o prejudice so that P could refile at any time
ii. D’s strategy still successful, b/c he highlighted Ps incompetence before the court
2. The Complaint – Claim must be set forth in a formal document
a. Notice Pleading
i. Rule 3: Commencing an Action- a civil action is commenced by filing a complaint with the court.
ii. Rule 4: Summons- P’s lawyer must notify the D (2 ways)
1. Informal- Waiver of Service, involves mailing the D the complaint and Forms 1A and 1B; if D mails and signs 1B then can proceed.
2. Expensive- if D refuses to cooperate, requires lawyer to draft a summons and take it to the court clerk. The summons and complaint must then be “served” Rule 4 (c).
iii. Rule 8 – Pleading Requirements
1. Grounds for jurisdiction
2. Claim showing that the pleader is entitled to relief
3. Demand for judgment and relief sought
iv. Bell v. Novick Transfer Co. – A statement that merely states that a D’s actions were negligent and caused injury is not void for failure to state a claim. Nor can P be compelled via motion to file a more specific statement under Rule 12(e), b/c the specificities should be determined via interrogatories under Rule 33 during discovery. Although MD may have more specific requiremetns, P fulfills rule 8(a)
3. The Response – Motions and Answer
a. Preanswer Motions
i. 12(b)(1): subject matter jurisdiction (no cure)
ii. 12(b)(2): absence of personal jurisdiction
iii. 12(b)(3): wrong venue/ sorting
iv. 12(b)(4)-(5): objection to the process
v. 12(b)(6): failure to state a claim upon which relief can be granted
vi. 12(b)(7): failure to join a necessary party
vii. 12(e): motion for a more definite statement
i. ∆ denies the truth of the allegation or denies until he can find out if it’s true (Rule 8(b))
ii. ∆ asserts affirmative defenses (Rule 8(c))
iii. ∆ asserts own claims against the ∏ (cross-claims, counterclaims, third-party claims/ impleading)
1. Cross-claims involve parties on the same side of the “v” à one ∆ sues another ∆ for claims arising out of the same transaction.
2. Counterclaims involve parties on opposite sides of the “v”
a. Permissive Counterclaims
b. Mandatory Counterclaims
3. Third-party claims – ∆ asserts a claim against a party not in the action but that is liable to ∆ for ∏’s claim against ∆ (Rule 14).
c. Reply: ∏ files if there are additional claims raised in the answer.
d. Response: usually the last stage of pleading.
e. Differences b/w Preanswer Motions and Answer
i. Preanswer motion takes no stance as to the truth or falsity of the allegations
ii. Answer seeks no immediate/ intermediate relief from the court.
iii. Must file all preanswer motions up front except 12(b)(6) and others outlined in 12(h)(2) OR 12(b)(1)/ lack of SMJ, which can be raised at anytime by anyone.
4. Amendment of Pleadings: the Rules reflect a liberal policy toward changes to the pleadings.
a. Rule 15(a): party may amend once before a responsive pleading or may amend by leave of court or written consent of other party.
b. Rule 15(c): relation back – deals with amendments interposed after the statute of limitations on a “new” claim has run.
c. Rule 15(b): deals with amendments interposed during the course of trial to reflect introduction of new evidence.
iv. Parties to the Lawsuit
1. Permissive and Compulsory Joinder
a. Who may be joined as P or D? Rule 20 (Permissive Joinder)
b. Who must be joind as P or D? Rule 19 (Compulsory Joinder)
c. Are there persons not in lawsuit who can join party if they please? Rule 24 (Intervetsion)
d. May some parties in suit represent others not in suit? Rule 23 (Class Action)
c. Factual Development – Discovery
i. Primary Means of Discovery
1. Disclosures (Rule 26(a)(1)): parties required to reveal info. being asked.
2. Production of documents from parties to the suit (Rule 34) and outside parties by subpoena (Rule 45).
3. Oral Depositions (Rules 30, 45)
4. Written Interrogatories (Rule 33)
5. Physical/ Mental Examinations (Rule 35)
6. Requests for Admissions
1. Rule 26(b): must be relevant and not privileged.
2. Rule 26(c): motion for protective order.
iii. Butler v. Rigsby – court held that a health provider’s list of patients was protected by the doctor-patient privilege and, accordingly, could not be discovered by another party, even though relevant
d. Pretrial Disposition – Summary Judgment
i. Rule 56: Summary judgmentà there is not any conflicting evidence that a trial could resolve
1. Allows a court to enter a judgment as a matter of law on part or all of the lawsuit when it concludes that there is no genuine issue of material fact
ii. Houchens v. American Home Assurance Co.- Where a widow cannot present any evidence that her husband died in an accident the court properly granted a motion for summary judgment since there was no issue of fact to be decided at trial
i. Symmetry in which parties present there case:
ii. Trial by jury guaranteed by the VII Amendment
iii. Trial process
1. Jury selection (peremptory challenges)
2. Opening statement
3. Examination/ cross-examination
4. D makes motion for a judgment as a matter of law (directed verdict – Rule 50(a))
5. D does steps 2 & 3
6. Jury instructions – Rule 51
7. Motion for a judgment as a matter of law (JMOL)/ motion notwithstanding the verdict (JNOV) – Rules 50(b) & 59
a. Norton v. Snapper Power Equip./ 1987 – F: Norton claimed that a lawnmower was defective because of lack of “dead man” switch.
i. H: Yes, district court erred because the jury heard the entire case and decided for Norton – they are entitled to make inferences in order to come to a conclusion.
b. JMOLs are automatically appealed but usually affirmed. The purpose of allowing a jury to deliberate before issuing JNOV/JMOL is to avoid a whole new trial in the future.
c. Should grant JMOL only if a reasonable jury/ person could not arrive at a contrary verdict.
8. Motion to set aside the judgment – Rule 60(b)
f. Effect of Judgment / Former Adjudication
i. Claim Preclusion – generally a claim can be brought and a negative judgment can be appealed, but the claim cannot be brought fresh in a separate preceding (or should have brought)
ii. Issue Preclusion – a party cannot raise an already-decided issue in a subsequent case
iii. Rush v. City of Maple Heights/ 1958 – F: ∏ was awarded damages for her motorcycle based on negligence claim. Negligence is found. Then ∏ initiates second suit for personal injury also based on negligence and requests much higher damages.
1. Claim #1: Property Damage – $100
a. Position of the City: claim preclusion – failure to combine personal injury with property suit means you’re precluded from the second claim.
b. Position of the ∏: issue preclusion – negligence issue has been decided already – city was negligent – so only argue damages the second time around.
2. Claim #2:
Yes (unless unfair bargaining)
4. Mechanics of jurisdiction: Challenge and Waiver
a. Rules 12(b), (g) & (h) – direct attack
i. Can make a jurisdictional defense either in a preanswer motion or the answer.
ii. Any preanswer motion omitting the defense is deemed a waiver.
iii. Must raise jurisdiction the first time any issue is raised, either by motion, appearance, or answer.
b. Collateral Attack: A D defaulting on an action may collaterally attack a default judgment asserted in another jurisdiction on the grounds that the first action was asserted in a forum w/o proper jurisdiction. This often occurs where an award granted in one jurisdiction is to be enforced in a second jurisdiction
5. Modern Constitutional Formulation of Power
a. International Shoe Co. v. Washington – Issue: How do you assert jurisdiction over a corporation? (nonresident)
i. Minimum Contacts Test:
1. “Minimum contacts” w/ the state
a. Jurisdiction is proper if the D had “certain minimum contacts w/ the state such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’”
2. Specific vs. General Jurisdiction: 2 types of contacts
a. Specific jurisdiction (suit arose out of contacts à Minimum Contacts Analysis
i. Not allowed if the claim was unrelated to contacts
b. General jurisdiction (suit unrelated to contacts) à”Continuous and Systematic” then jurisdiction may be allowed
3. Fairness – fair play and substantial justice
Minimum contacts guide:
Type of Presence
Relation of the contacts and the claim
Systematic and Continuous
Continuous and Limited
Acts are related to the claim
Casual or Isolated
Act is related to the claim
b. Absorbing In Rem Jurisdiction
i. Shaffer v. Heitner – held the minimum contacts test also applied to in rem jurisdiction. Eliminated the use of in rem jurisdiction in cases where the claim did not arise out of the property.
1. RULE: Jurisdiction cannot be founded on property within a state unless there are sufficient contacts within the meaning of the test developed in International Shoe
a. Contacts may include ownership of property, but mere ownership of property does not conclusively establish jurisdiction