Civil Procedure I Outline

Civil Procedure Outline

Introduction

Jurisdiction

i. Subject matter – can court hear this case with this cause of action, includes diversity in federal cases
ii. Personal jurisdiction – is the person subject to jurisdiction of this court, usually by minimum contacts
iii. Venue – 28 U.S.C. § 1391
1. Where a substantial part of events occurred
2. Where any defendant resides

Pleadings

i. Rule 11
1. Must have signature – Rule 11(a)
2. Must represent “proper intent” to court – Rule 11(b)
3. Party filing may be subject to sanctions if found in violation of Rule 11(b) – Rule 11(c)
ii. Rule 8
1. Short and plain statement is all that is required in initial pleading – leaves room for discovery
2. Party must affirm or deny all claims made against them, or can state they don’t have enough information to do either (effectively a denial)
3. Party states affirmative defenses

28 U.S.C. – federal code covering judiciary

i. § 1332 – a case that has diversity for federal jurisdiction can still be heard by applicable state court
ii. § 1441 – allows defendant to “remove” case from state to federal court, as long as federal court has jurisdiction
iii. Diversity jurisdiction – even if heard in federal court, that court will apply the state law in question

Rule 12(b) – Pre-answer motions

i. Get the claim dismissed before discovery
ii. Procedural issues – jurisdiction, failure to state a claim

Rule 13 – Counterclaims and Cross-Claims

i. Counterclaims
1. Compulsory – those arising out of action in question, must be raised on initial pleading or party loses right to make them
2. Permissive – any other claim party may have against the other, can be filed with initial claim or later
ii. Cross-claims
1. Action between parties on same side of the “v”
2. Claim must arise out of original action or counterclaim

Rule 14 – Third Parties
Rule 19 and 20 – Joinder – Asking other parties to join

i. Rule 19 – compulsory joinder – parties that have to be added, otherwise another party would receive incomplete relief or defense
ii. Rule 20 – Permissive Joinder
1. As a plaintiff, asserting right to relief from same transactions
2. As defendant, you may be joined by other defendant if relief sought can be linked to your role in the action

Rule 24 – Intervention – Asking if you can join

i. Right – when a statute explicitly gives you the right to intervene in a cause of action, or when your remedy would be lost if you were not involved
ii. Permissive – when claim or defense has facts in common with the action, but only granted if opposing parties’ right to relief or defense remains unchanged by the intervention

Rule 26 – Discovery

i. Most cases end after discovery – pleading don’t provide a lot of information, so it is discovered here
ii. Broad scope allowed by court – anything that can reasonably be seen to lead to evidence will be supported by court

Rule 50 – Judgment as a matter of law – j.n.o.v.

i. Either party may ask judge to decide case before it goes to jury – if judge finds that a reasonable jury would have only one verdict, judgment can be delivered without jury deliberation
ii. Judge can also disregard verdict and enter judgment for other party if he feels that jury was not reasonable
iii. Norton v. Snapper
1. Judge in trial made j.n.o.v. for defendant after the verdict
2. Appellate court reversed – to make a j.n.o.v., court must look at evidence in most favorable light to adverse party

Preclusion

i. Claim preclusion – a party can only bring a claim once
ii. Issue preclusion – once an issue is decided by trial, the decision of that issue remains the same for any action that relied on that claim
iii. Rush v. City of Maple Heights
1. Plaintiff wants issue preclusion – city was negligent
2. Defendant wants claim preclusion – plaintiff already brought an claim for damages from action, no other claims should be allowed
3. Appellate court determined that all claims arising from action need to be raised at the same time.

Appeals – 28 U.S.C. § 1291

i. Normally only granted on decisions that are final, no more action on the claim
ii. § 1292(b) – allows for court to decide to hear an appeal of court decision doesn’t stop the action, as long as that decision would be a controlling question of law

Incentives to Litigate

Remedies – two sorts of categories

i. Substitutionary and Specific
1. Courts prefer substitutionary remedies (damages) to specific (injunctive relief, replevin)
ii. Legal and equitable
1. Comes from old English system
2. Legal damages are generally heard by a jury, while cases for equitable relief are heard in bench trial
iii. Sigma v. Harris
1. Court has to decide on remedy for Sigma Chemical Company in case against Harris, former employee who violated no-compete clause in his contract
2. Monetary damages too difficult to discern – how much money did Sigma really lose by Harris’ loose lips?
3. Injunctive relief instead – court has to balance the harm suffered to Sigma by Harris’ actions with the harm the injunction would cause Harris

Costs of litigation

i. Attorney’s fees largest part of costs of lawsuits – but it doesn’t stop there
1. Court fees
2. Filing fees
3. Administrative fees
4. Discovery costs
5. Expert witnesses costs
6. “black cloud” of litigation
ii. Some claims not made due to costs of litigation
1. Small claims
2. Cases that are not for monetary relief – not eligible for contingent fee – divorce, child custody cases
iii. Court Costs
1. Rule 54 and 28 U.S.C. § 1920 – certain costs of litigation are shifted (taxed) to losing party, but limited to court costs, local travel for witnesses – not attorney fees
2. Rule 68 – shifts some fees back to plaintiff if
a. An offer is presented before trial, but then refused
b. Plaintiff prevails at court, but the damages awarded are less than offered in the settlement
c. The court fees incurred after the settlement was rejected are shifted to the plaintiff (normally it would