Civil Procedure I Outline

CIVIL PROCEDURE

SCHWEMM

FALL 2013

A SURVEY OF THE CIVIL ACTION

I. The Concern And Character of Civil Procedure

A. Courts apply two types of law when resolving legal disputes

1. Substantive

2. Procedural (What we focus on—resolving disputes about substantive rights and duties)

II. An Outline of the Procedure in a Civil Action

A. Selecting a Proper Court

1. State or Federal

a) Dependent on jurisdiction—must have all three of these in order for a court to issue a legitimate judgment in a case.

i. Subject Matter

ii. Personal

iii. Venue

B. Summons: Defendant directed to appear and defend under penalty of default.

C. Complaint: Written statement containing the claim. *Rule 4*

1. Furnish a basis for identifying and separating the legal and factual contentions involved so the legal issues may b disposed of at an early stage.

2. Pleadings may be intended to establish in advance what a party proposes to prove at trial so that his opponent will know what factual contentions he must prepare to meet.

3. Pleadings may be intended to give each party only a general notice of his opponent’s contentions, in which event the system would rely upon subsequent stages of the lawsuit to identify the legal and factual contentions of the parties and to enable each to prepare to meet the opponent’s case.

D. Motion to Dismiss: filed in response to a complaint—Procedure or Substantive.

1. Three situations in which a motion might be granted

a) Complaint may clearly show the injury is one for which the law has no redress

b) Plaintiff may have failed to include an allegation on a necessary part of the case

c) Complaint may be so general or so confused that the court finds it does not give adequate notice of what the plaintiff’s claim is.

2. Answer: filed if motion to dismiss is denied or not made.

a) Defendant must admit or deny the factual allegations made in the complaint

III. Illustrative Cases

A. The Authority of the Court to Proceed with the Action

1. Capron v. Van Noorden: Substance Claim-action of trespass on the case. (tort)

a) Capron arguing N.C. did not have jurisdiction

i. Issue: where the parties reside

· P: N.C.

· D: ??

ii. Article II §2 U.S. Constitution

· Controversies between two or more states; between a state and citizens of another state; between citizens of different states.

b) #1 PàD #2 PàD Res Judicata only applies if #1 was a good judgment. If not a good judgment, then there is a do-over.

2. Tickle v. Barton/Coleman: WV Car accidentà Service on Defendant Problem (Football banquet)

a) Barton: VA Coleman: WV

i. WV police have no power to serve Barton in VA

b) Service was bad: Trickery is not valid.

B. Defining the Determining the Case Before Trial

1. Case v. State Farm Mutual Automobile Insurance Co.: Allegations in pleadings must specifically state each claim.

2. Alderman v. Blatimore & Ohio R.Co.: Free Pass for Train rider—accident

a) Carrier may contract against liability for negligent injury to one who accepts a free pass, but because of public policy cannot relieve itself of liability for willful or wanton acts.

b)

U.S. Trial Court (District) WV

Factualàdeny

Pass: Hurt Plaintiff; Defendant was negligent; amended to willful

Which court? à Plaintiff’s complaint/service à Defendant’s response à

D not Willful

Summary Judgment Motion: Granted

c) 3 Types of Defendant’s Responses

i. Procedural Problem

ii. Facts don’t violate substantive law

iii. Deny Fact

C. Judge and Jury

1. Alexander v. Kramer Bros. Freight Lines Inc.:

a)

1) Factualàdeny 2) Allege Plaintiff caused the accident (contributory negligence)

Defendant=Negligent –Caused Plaintiff’s injuries

U.S. Trial Court (District) NY/CT

Which court? à Plaintiff’s complaint/service à Defendant’s response à

Not Filed. Direct conflict of fact: Need Fact finder.

Summary Judgment Motion

b) Burden of Proof for Contributory Negligence varies by Jurisdiction. Plaintiff wants to pick jurisdiction in which the Defendant has the burden.

2. Lavender v. Kurn: Dead employee of Respondent—2 theories on how he died. (Murder v. Negligence)

a) Evidence warranted a jury trial. Not the Appellate court’s job to re-weigh the facts of the case.

b) Appellate court must look at the evidence in the light most favorable to the jury