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Civil Procedure I
University of Michigan School of Law
Niehoff, Leonard M.

CIVIL PROCEDURE – Fall 2011, Prof. Niehoff
I.     Civil Procedure – Introduction
A.    Hawkins v. Masters Farms Inc. (2003): Mr. Creal is killed by tractor driven by Masters. Although Creal lived in Missouri for a long time, his recent marriage in Kansas and intent to stay makes him resident of Kansas. No diversity jurisdiction, dismissed for lack of SMJ.
1.      FRCP 12(b)(1): Lack of subject matter jurisdiction (diversity jurisdiction)
2.      Niehoff: Doesn’t buy judge’s argument that it was filed in Federal court to get better timing. Thinks lawyer had a preference for which judges to work with.
3.      Rules Enabling Act: 28 U.S.C. § 2072(b): “Rules cannot abridge, enlarge, modify any substantive right”
4.      Jurisdiction: Court must have:
a)      Subject Matter Jurisdiction (Non-waiveable)
i)        Federal Question Jurisdiction: Cases arising under federal law
ii)      Diversity Jurisdiction: complete diversity p&d and amount in controversy exceeds $75,000
(a)    Domicile based on time when suit filed, not when accident happened; subjective – intent/state of mind to remain, objective – physical presence Hawkins v. Master Farms
(b)   This evidence can be manufactured (register to vote, rent apt., job)
iii)    Pendant/Supplemental Jurisdiction: State law claims arising out of same facts as either of the prior two types of claims
b)      Personal Jurisdiction (Waiveable)
i)        Defendant resides in that state or has another purposeful connection.
ii)      Defendant must be given notice.
iii)    Part of D’s DP rights (where is it fair to sue them), nothing to do with P
(a)    For the ct. to exercise power over ∆, its state must have some connection with him or with the incident, ∆-focused
c)      General Jurisdiction: any case (assuming personal jurisdiction)
d)     Limited Jurisdiction
i)        Ex.: All Fed Cts., need specific authorization from a statute -Federal questions 28 USC §1331
e)      Fed law ≠ Fed ct, State law ≠ State ct
i)        Fed questions may be heard in state ct, and vice versa; Ex. Hawkins
f)       Venue: Placing the litigation in a convenient and proper forum; issue w/in jurisdiction
i)        If there is more than one court then which is the proper Ct in which court should case be heard?
g)      Why does jurisdiction matter?  We want to make sure that there is a fair venue for all parties
5.      Steps Leading Up to Lawsuit:
1.      Injury
2.      Try to resolve without lawyer (settle, arbitration, etc.)
3.      Get a lawyer or pro se
4.      Basic intake/information sesh (Rule 11)
5.      Draft/file a complaint (Rule 8/9): Decide, what to sue for, who to sue, where to sue, when to sue
6.      Service to defendant (2 ways, Rule 4)
a.       Waiver of service. Mail form to D, D fills out and signs back
b.      Summons and service
i.      Personal delivery of summons
7.      Answer- Defendant Response. Options:
a.       Ignore it – default (Rule 55 Default Judgment)
b.      Answer +
i.      file a motion (Rule 12) (If 12(b)(6), wait for grant/denial before answer)
ii.      Affirmative defenses (Rule 8(c))
iii.      Counter claim, cross claim against another party (Rule 13) + D joins (19) + impleader (14)
c.       Reply from P (If counterclaim) (13)
8.      Maybe Plaintiff amends within 21 days. (Rule 15a) – supp. claim/allegations, joinder
9.      Discovery. There is a meeting with the judge to makes the rules for the case. (Rule 26f)
10.  Everyone does discovery. (Rules 26-37). (Sanctions 37), possible continuance
11.  Resolution.
a.       Settlement. Most cases settle.
b.      Court Resolves Without Trial
i.      Dismissal (Rule 12) (this would have already happened in step 5)
ii.      Default/Default Judgment (Rule 55)
iii.      Summary Judgment (Rule 56)
c.       Trial (Rule 52)
i.      With a judge? (motion for JMOL (50), 52a; JNOV, 52b)
ii.      With a jury? (Rules 38 and 39)
iii.      New Trial? (Rule 59)
d.      Entering Judgment
i.      Declaratory Judgment – 57
ii.      Entering Judgments – 58
e.       Relief from Judgment
i.      Mistakes – 60
ii.      Harmless Error – 61
12.   Appeal
a.       final judgment rule, U.S. Code
b.      Respect for Judgments
i.      Claim preclusion
ii.      Issue preclusion
13.  Pay the damages and move on with your life.

6.      Typical Order of Case:
a)      Complaint
b)      Answer
c)      Discovery
d)     Pretrial Motions (SJ)
e)      Trial
II. Pleadings
A.    General Overview
FRCP 7(a): Pleadings: Types allowed.
FRCP 11: Signing Papers; Representation to the Court; Sanctions
B.     Bridges v. Diesel Service Inc (1994): Plaintiff failed to file EEOC complaint before filing ADA complaint. Court has option to sanction under Rule 11, but chooses not to. Reserves that for frivolous claims. Rule 11 is not a fee-shifting device but is to deter improper conduct. Dismissed without prejudice.
1.      FRCP 11(c)(2): You must file motion informing other party of their mistake, then give them 21 days to fix before filing for sanctions. Must serve them under Rule 5 (Service).
2.      Can be used to sanction attorneys for mistakes/non-meritorious claims, but they are issued at the Judge's discretion
3.      Rule 11(b) Requirements When you Sign a Pleading:
a)      Must be supported by a reasonable factual investigation and a normally competent level of legal research
i)        What you allege must be sufficient to state cause of action
ii)      Looked at the law and there is either previous law or a good reason to potentially modify the law. 
4.      In Bridges: Why does it matter that this is a procedural vs. a substantive mistake?
a)      Judge may believe there is a meritorious issue, want to leave that possibility open
b)      Don't want to chill claims, goal is deterrence; lawyer already fixed their mistake
C.     Bell v. Novick Transfer Co. (1955): D motions to dismiss on grounds that declaration by P isn’t specific enough. Court says it is good enough under FRCP 8 even if it might not suffice under Maryland rules.
1.      FRCP 8(a)(2): Claim for Relief: Pleading that states claim for relief must contain a short and plain statement of claim showing that plaintiff is entitled to relief.
2.      FRCP 12(e): Motion for More Definitive Statement: Court does not allow, since apparently declaration wasn’t too vague/confusing. Instead suggests discovery.

NT
1.      FRCP 56: Summary Judgment: Usually done after discovery (based on proof)
a)      By Claiming Party
b)      By Defending Party
c)      Time for Motion, Response, Reply
i)        May move for partial/summary judgment until 30 days after close of discovery
ii)      Opposing party must respond within 21 days after motion served or responsive pleading is due
iii)    Movant may file reply within 14 days after response is served.
iv)    Judgment should be rendered if evidence shows no genuine issue as to any material fact and movant is entitled to judgment as a matter of law.
J.       Houchens v. American Home Assurance Co. (1991): Wife appeals summary judgment in case of husband’s disappearance. No reasonable basis for jury to find evidence of accidental death as required by life insurance policy.
1.      For FRCP 11 complaint asserting accidental death, you may not have facts supporting accidental death, but perhaps could have facts eliminating other methods of death.
2.      Since there is no real evidence, jury would be speculating re: cause of death.
3.      Speculation vs. inference: Jury may infer, but cannot speculate.
4.      Perhaps jury would be sympathetic to plaintiff. Or maybe judge doesn’t think hubby is dead.
5.      Papers filed: Motion for summary judgment, brief in support of motion (usually limited to 20 pages), affidavits/depositions, evidence that would be admissible at trial (not pleadings)
6.      Plaintiff: show dispute about element of claim challenged by motion. Defendant wants to show facts are undisputed – “he can’t prove it” Celotex
7.      Burden of Production: Move into territory where reasonable minds could differ (DV if SJ)
8.      Burden of proof: Preponderance of evidence. More likely than not (51%) In some tort cases, the standard is clear and convincing evidence.
K.    TRIAL
1.      Fewer than 5% of federal cases go to trial. Can’t always predict, so must prepare as if case will go to trial.
2.      FRCP 50(a): Judgment As a Matter of Law: Post-Verdict = JNOV
L.     Norton v. Snapper Power Equipment (1987): Lawn mower chops off four fingers. Circuit court reverses trial court judge’s judgment notwithstanding the verdict in favor of Snapper. OK for jury to think lack of dead man switch probably caused injuries. (Inference upon inference)
M.   Fenner v. GMC (1981): Auto accident over defective steering mechanism. Plaintiff could only theorize that stone in steering mechanism caused accident. More speculative than Norton apparently, judgment notwithstanding verdict is OK.
1.      Order of Trial:
a)      Plaintiff
i)        Opening Statement
ii)      Present Case (Proof of Liability/Damages)
iii)    Closing Statement
iv)    D move for Directed Verdict (granted, verdict entered; denied, goes on)
b)      Defendant
i)        Opening Statement
ii)      Present Case (Refute Liability/Damages)
iii)    Closing Statement
iv)    Both parties move for DV