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Civil Procedure I
University of Iowa School of Law
David, Marcella

Civil Procedure

Spring 2011

Professor David

I. A Survey of the Civil Action

a. Concern and Character of Civil Procedure

i. Substantive and Procedural Law

1. Substantive—Parties’ rights & duties

2. Procedural—Mechanics of how a case proceeds

a. Distinction isn’t always clear (ex: statutes of frauds)

ii. Adversary System

1. Parties have responsibility for bringing suit; producing evidence

a. Party incentives lead to truer decisions

b. Parties should bear burden of time and effort

c. Two-sided system makes “yes or no” questions easier

d. Satisfies people’s competitive instincts

b. An Outline of the Procedure in a Civil Action

i. Selecting a Proper Court

1. Court must have personal and subject-matter jurisdiction

a. Personal can be waived; subject-matter cannot

2. Original Jurisdiction

a. Either general or inferior jurisdiction

3. Venue—the proper court within a system (ex: correct county)

ii. Commencing the Action

1. Service of Process

a. Summons (Δ appears under threat of default)

i. Personal Service

ii. Substituted Service

iii. Publication in Newspaper

b. A person can’t be falsely induced to enter a jurisdiction for service of process (Tickle v. Barton)

iii. Pleading and Parties

1. Pleadings may be used to separate legal and factual contentions, inform opponent of one’s arguments, etc.

2. Complaint

a. Sent with summons—lists π’s claim

iv. The Response

1. Motion to Dismiss; or (if fails)

2. Answer

a. Plead any affirmative defenses

b. Pleadings generally close after answer

v. Obtaining Information Prior to Trial

1. This helps parties discover arguments; aids summary judgment

a. Depositions

b. Written Interrogatories

c. Requests for Production of Documents

d. Requests for Admissions

vi. Summary Judgment

1. Supplements the pleadings (note: judge doesn’t decide truth here)

vii. Setting the Case for Trial

1. Case added to trial calendar after discovery is complete

viii. The Jury and Its Selection

1. Parties usually have right to trial by jury (but need not be asserted)

ix. The Trial

1. Opening statements

2. Plaintiff’s case

3. Plaintiff rests

4. Motion for directed verdict by D

5. Defendant’s case

6. Defendant rests

7. Motion for directed verdict by P and D

8. Case submitted to jury

x. Submitting the Case to the Jury

1. Lawyers recommend jury instructions

2. Judge instructs jury

3. Jury Verdict (type selected by judge)

a. General Verdict—Announce winner; amount of damages

b. General Verdict w/ Interrogatories—Includes questions to test jury’s understanding of the issues

c. Special Verdict—Jury determines factual issues only

xi. Post-Trial Motions

1. Judgment Notwithstanding Verdict (JNOV)

2. Motion for New Trial

xii. The Judgment and Its Enforcement

1. Execution—forcing losing party to satisfy judgment

xiii. Appeal

1. Record—pleadings, trial transcript, written briefs, & oral argument

2. Appellate court may affirm, reverse, remand, or modify judgment

xiv. The Conclusiveness of Judgments

1. Res judicata—“A thing decided.” Judgment is at rest after appeals

c. A Note on Motion Practice

i. Motion—Litigant asks court for an order

1. Must be served on other party

2. Other party must answer within a time period

d. A Note on Remedies

i. Remedies are part of substantive law (ex: tort law) but are procedural by means of enforcement

1. Declarative: Court defines rights and duties for parties

2. Specific: Order directing particular conduct

3. Compensatory: Δ pays damages to π

e. A Note on Procedural Rules in the Federal and State Courts

i. Federal Rules of Civil Procedure

1. Trans-substantivity—they apply regardless of case complexity

2. Don’t bind state judicial systems

II. Jurisdiction Over the Parties or Their Property

a. The Traditional Basis for Jurisdiction: In Personam Jurisdiction

i. Pennoyer v. Neff

1. A court may enter a judgment against a non-resident only if the party

a. Is personally served with process while within the state, or

b. Has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction).

2. States are exclusive and have jurisdiction only over their state.

3. If you are able to service personally, you should do it personally.

b. Expanding the Bases of Personal Jurisdiction: In Rem Jurisdiction

i. When a defendant has property in the state, they can be served at that property even if they are not living there.

ii. Deals with the person’s interest in whatever property they have. Therefore, the claim is against the property, not the person.

iii. In Rem is okay because we can constructively assume that either the property owner or those who know the property owner are keeping watch for him.

c. A New Theory of Jurisdiction

i. Minimum Contacts

1. Jurisdiction and Due Process depends on the quality and nature of the business.

a. Examine if “minimum contacts” exist in order to assert jurisdiction

i. Regular contact

ii. Formal contact

iii. Continuous activity

iv. Regular activity

2. International Shoe Co. v. Washington

d. Specific Jurisdiction and State Long-Arm Laws

i. The Development of Long-arm laws

1. Long arm statutes give states power to sue a defendant who is outside of the state.

2. Specific jurisdiction is the power to adjudicate issues deriving from, or connected with, the very controversy that establishes jurisdiction.

3. If a tortuous act occurs within a state, but the party liable is from outside of the state, the state can reach over and service the party.

ii. Due Process and Long-Arm Statutes

1. McGee: Insurance company had a substantial connection with that state and thus the beneficiary of the insurance policy. California had jurisdiction over the insurance company.

2. Hanson v. Deckla: Bank did not have minimum contacts in FL. No jurisdiction.

3. Purposeful Availment Test:

a. If a party has intentionally sought business in that state, then they are subject to that state’s jurisdiction (Volkwagen)

b. Foreseeability is necessary, but it is not sufficient for purposeful availment (Volkswagen)

c. Minimum contacts requirement – evolves from above

i. McGee – Party has to be actively seeking business

ii. Keeton – magazine sales in a state

iii. Burger King v. Rudi – Taking advantage of trademark which is technically located in different state

iv. Asahi

1. Entering a product into the stream of commerce is not sufficient reason to declare purposeful availment

2. Fairness (first time we see court look at fairness in jurisdiction)

a. Was not fair to pull Asahi into California jurisdiction

b. Asahi had never availed themselves

3. State’s interest in the case

a. California has no interest in settling a contract between to Asian companies.

b. Therefore, because California has no

a. Service to an agent is valid if the agent promptly accepts and transmits notice of service, even if the agent is unknown to defendant (Nat’l Equipment v. Szukhent

5. Federal Rule 4(h): Serving a Corp., Partnership, or Ass.

a. Service by delivery to an officer or agent is adequate

b. Courts construe liberally: service is fine to any person “reasonably calculated” to alert Δ to suit (Hellenic)

6. Rule 4(f): Serving an Individual in a Foreign Country

a. Courts construe liberally: Hague Convention, service waiver, mail, agent, and email all acceptable

iii. Return of Service

1. Process-servers must file a return to prove trial court has jurisdiction. Most courts treat return as evidence, but not conclusive proof of service.

iv. Immunity From Process

1. Courts can grant immunity from service of process to promote justice. Ex: witnesses who enter a state for a lawsuit are immunized from service of process in other suits.

IV. Jurisdiction Over the Subject Matter of the Action

a. Subject-Matter Jurisdiction of State Courts

i. State general jurisdiction courts may hear cases under another state’s laws (Full Faith & Credit Clause—Art. IV, §1)

ii. State courts presumed to have concurrent jurisdiction over federal law

b. Diversity of Citizenship—Federal SMJ

i. Introduction

1. 28 U.S.C. § 1332—Diversity of Citizenship Statute

2. Complete Diversity requirement

3. Diversity Jurisdiction

a. Pros: Still have state prejudices; Federal Court superiority

b. Cons: Clogs Fed Courts; State law is supreme; interferes with state autonomy; retards state law growth & reform

4. Movement toward Minimal Diversity

a. 28 U.S.C. § 1369—Minimal Diversity for Mass Accidents

ii. Determining Citizenship

1. Requires Domicile

a. Intent to make it your permanent home; court will look for objective manifestations of your intent (library cards, etc.)

b. To find domicile, court will look for 1) intent, and 2) indicia of intent (Mas v. Perry)

2. A person is a domicile of only one state; a corp. can be domiciled in many states, with one principle place of business

iii. Amount in Controversy

1. Must be at least $75,000

2. Aggregation of Claims

a. One π may aggregate claims against one Δ, regardless of relation between the claims

b. Multiple π’s may aggregate claims only to enforce a “single title or right, with common & undivided interest.” Can’t be “separate and distinct.”

iv. Judicially Created Exceptions to Diversity Jurisdiction

1. Courts may decline to hear probate and domestic relations cases, even where diversity requirements are met (lack SMJ)

c. Federal Questions—Federal SMJ

i. 28 U.S.C. § 1331—“Arising under…”

1. Promotes uniformity of federal law

2. Develops judicial expertise in federal law

3. Protects against state court hostility toward federal law

ii. A statute providing for federal jurisdiction should be followed (Osborn)