Select Page

Civil Procedure I
University of Mississippi School of Law
Czarnetzky, John M.

Civil Procedure I

John Czarnetsky

Fall 2011

University of Mississippi School of Law

1. Service of process: Rule 4

a. Summons must be served with a copy of complaint w/in 120 days

b. Waiver of service – If D doesn’t waive when he should, court can impose cost of service on D. If D waives, has 90 days to answer instead of normal 60. This doesn’t waive jurisdiction/venue.

2. Claim for Relief: Rule 8(a)

a. A pleading that states a claim for relief must contain

i. Reason for jurisdiction – short/plain statement of the grounds for jurisdiction

ii. Facts of the incident – why relief is sought

iii. Type of relief sought

b. Bell v. Novick transfer

3. Assigning duties/sanctions to lawyers to prevent frivolous suits: Rule 11

a. Primary goal is deterrence.

b. Attorney’s duty is to “stop, look, and listen” – Attorneys have a duty to make reasonable investigations of facts and law of every case.

c. 11(b)(2)

i. The claims/defenses of the suit must be warranted by law, OR

ii. Must be warranted by nonfrivolous argument for bringing changes to present law.

d. If lawyer breaks Rule 11, can be sanctioned to deter further breaching of rule

e. “Pure heart, empty head” is not a valid defense for a Rule 11 violation.

4. Responses to the complaint: Rule 12

a. D must answer w/in 21 days of service.

b. Responses:

i. Motions – request for a ruling on a specific subject; D can file for motion to dismiss if he feels P’s claim is deficient.

ii. Pre-answer motions – take no position on truth/falsity of P’s claim, but tries to dismiss claim (no SMJ, no PJ, improper venue, defective or improperly served summons, 12(b)(6) [failure to state claim upon which relief can be granted])

iii. Answer – admits/denies P’s allegations; if don’t answer w/in 21 days, assumed you admit.

1. Affirmative Defenses – statute of limitations, lack of jurisdiction

2. Counterclaims – claim for relief asserted against opposing party

3. Cross-claims – against co-party

4. Third party claims – against party not in action

5. Compulsory joinder: Rule 19

a. Must join b/c invokes rights that are joint – if they don’t, could be dismissed

b. A person who’s subject to service of process and whose joinder will not deprive the court of SMJ must be joined if:

i. In that person’s absence, court cannot accord complete relief

ii. That person claims an interest relating to the action and is so situated that disposing of the action in his absence may:

1. Impair/impede his ability to protect his interest

2. Leave an existing party subject to substantial risk of incurring double/multiple/inconsistent obligations b/c of the interest.

6. Permissive joinder: Rule 20

a. Plaintiffs – persons may join as Ps if (a) they assert a right to relief jointly or severally (or the alternative) arising out of the same transaction/occurrence, and (b) if any question of law common to all Ps will arise in the action.

b. Defendants – persons may joins as Ds if any right to relief is asserted against them jointly or severally (or the alternative) arising out of same transaction/occurrence, and (b) if any question of law common to all Ds will arise in the action.

7. Discovery (factual development): Rule 26

a. Very broad – anything that’s not privileged is an open book – info must be relevant

b. Limited by privileges, and they are few.

c. Required disclosures – names/addresses of witnesses, copy of docs that are relevant to any claims/defenses will make in court, computation of damages

d. Discovery devices – disclosures, subpoena of docs, oral depositions, interrogatories, physical/mental exams, requests for admissions, affidavits

e. Limits to discovery – privileged info, duplicative, have ample time to discover, burden outweighs likely benefit

f. Butler v. Rigby – discovery can include inadmissible info if it can lead to other info

8. Dismissal of actions: Rule 41

a. Voluntary dismissal by P – if parties settle, P typically dismisses action

b. Involuntary dismissal (motion to dismiss by D) – if P doesn’t obey court; if court lacks jurisdiction; if P’s complaint doesn’t state a legally recognizable claim

9. Judgment as a matter of law: Rule 50

a. Directed verdict: 50(a) – moved for after P’s presentation of the case, then again after D’s presentation; if a RS jury wouldn’t have a legally sufficient basis to find for the P; “reasonable minds cannot differ”; before jury submits verdict.

b. Judgment Notwithstanding the verdict (JNOV): 50(b) – granted only when having considered evidence most favorable to non-moving party, no jury could’ve reached that decision; jury has done what no RS jury would’ve done; after jury submits verdict.

10. Default judgment: Rule 55

a. Entered against D when D fails to answer complaint entirely or fails to defend

11. Summary judgment: Rule 56

a. Provides a mechanism for deciding cases for which a trial isn’t necessary and would serve no purpose.

b. Granted when there’s “no genuine issue as to material fact”

c. After parties have engaged in discovery, it may turn out there are no dis

Intent to reside indefinitely (statement of person’s intent combined w/ objective things like driver’s license, voter registration, etc.)

8. Specific vs. general personal jurisdiction

a. You just have to establish one, doesn’t matter which one.

b. Specific – need minimum contacts that are related to c/o/a, action must arise from such contacts, purposeful availment, fair play, the c/o/a must arise out of the ownership of the property if you use property as the minimum contact

c. General – contacts don’t have to be related to the claim if they’re systematic and continuous; “super contacts”

i. For corporations, stream of commerce; reasonably foreseeable test

d. “Should argue the fair play aspect even when dealing with general jurisdiction”

III. SPECIFIC PERSONAL JURISDICTION

A. SPECIFIC PJ: PENNOYER

1. Facts – Pennoyer involved in dispute over title to land. Neff originally owned land. Mitchell obtained a judgment against Neff, and land was sold at a sheriff’s sale to Pennoyer. Neff then sued Pennoyer in separate action to recover possession of land.

2. Delineated 3 types of personal jurisdiction

a. In personam – power of a court to render decision over a person

b. In rem – power of a court to render decision over a thing (usually land)

c. Quasi in rem – if foreign D has property w/in state before action, state court gets PJ if court attaches (seizes) his land even if D isn’t in the state

i. (no longer good law b/c must have minimum contacts too)

3. Every state has exclusive jurisdiction over people and property w/in its territory.

4. Due Process – requires an appearance of personal service w/in forum before D is bound by court (now state court jurisdiction is a federal issue under 14th Amendment).

5. Courts need power (in personam), consent (owning property/showing up), and notice (personal service of process if D is there; seizing land or publication for in rem)

6. If person can be found in forum state, consents to PJ. If their property is in forum state before action, D subject to PJ.