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

Civ Pro Outline

Czarnetsky §1

Fall 2011

Remember domicile

-MS in 5th Federal Circuit (MS, LA, TX)

-13 circuits total-11 circuits + DC + Fed’l Circuit

A. Subject Matter Jurisdiction- what court- type of dispute

· General- ct can hear any claim, unless legal authority limits (i.e. probative)

· Limited- cts limited by statute to hear certain types of cases (all fed’l cts are limited jurisdiction)

· Concurrent- When jurisdiction overlaps b/t 2 cts.

All states have at least 1 TC of general SMJ

All fed’l cts are cts of limited SMJ-why? b/c what they can hear is outlined in Art III §2, or by fed’l code.

Diversity Jurisdiction- U.S.C. §1332- Civil actions b/t citizens of a different state AND where matter exceeds $75,000, may be heard in fed’l ct. Used to take away possible bias or favoritism of state cts.

· PJ- suit may be brought in forum where D is subject to pj (fed’l and state). Power of ct over particular Ds.

Hawkins v. Masters Farms- PJ is determined by domicile

Two criteria:

· Place where you are physically present

· Intent to remain indefinitely

Venue- Actual geographical location of trial.

-Purely statutory; not something Congress had to pass under Constitution.

– For fed’l cases, case should be brought:

a. Where D lives

b. Where COA arose, or

c. if (a) and (b) don’t give fed’l ct- wherever D has PJ

Service of process- summons issued by ct w/ complaint. Two basic means of service (Rule 4)- waiver of service and summons served.

Lawyer’s Responsibility

Bridges v. Diesel Services- procedural mistake (failed to properly file EEO complaint)

Rule 11: sanctions for improper filing, frivolous suits

Bell v. Novick- Rule 8(a) Complaint requires simple statement of who parties are & what D did/didn’t do

Rule 12: D must answer w/ in 20 days, 60 days if waived service, 90 if waived outside any US district

Responses- defense of the action:

Pre-answer motions- takes no position on truth or falsity of P’s allegations, but tries to get suit dismissed- no smj, no pj, venue improper, summons defective or improperly served, 12(b)1-7.

Answer- responds to allegations of complaint

· Admit or deny truth of allegations- if not answered, deemed admitted

· Affirmative Defenses- statute of limitations, lacks jurisdiction

· Counterclaims- claim for relief asserted against opposing party

· Cross-claims- against co-party

· 3rd party claims- against party not in action (to implead)

· Parties to the Lawsuit

Permissive joinder- Rule 20- may join

Compulsory joinder-Rule 19 Must join b/c invokes rights that are joint

Larson v. American Family Mutual Ins. Co.- Permissive joinder has 2 q’s: arising out of (a) common; (b) transaction or occurrence. In Larson the ct. held even though there were separate claims involved the lawyer’s actions arose out of the same transaction, occurrence or series of occurrences.

Intervention- when an absent party seeks, on its own, to come into a suit. Party has right to intervene when a lawsuit w/out him has potential to inflict real hardship on him.

Class Action- Rule 23- must certify class

D. Discovery

· Disclosures- names of witnesses, documents

· Production of Documents- Rule 34 or 45

· Oral Depositions­- Rule 30 or 45

· Written Interrogatories- Rule 33

· Physical and Mental exams

· Requests for admissions

Butler v. Rigby- Hospital claims privilege for documents requested by D. Discover includes not only info admissible at trial, but also inadmissible info that could lead to other info.

Rule 26(b)1: Parties may obtain nonprivileged, relevant matter, relevant need not be admissible at trial, if the discovery appears r’ble calculated to lead to discovery of admissible evidence.

Limitations to Discovery:

1. Privileged info

2. Duplicative

3. has been ample opportunity to discover

4. burden outweighs likely benefit

E. Summary Judgment- Rule 56- filed after discovery and granted if “NO genuine issue as to any material fact & movant is entitled to judgment as a matter of law”

· Facts are viewed in the light most favorable to nonmoving party

Houchens v. American Home Assurance- husband disappears in Thailand, wife wants to collect accidental death insurance. Court grants SJ for D. Rule 56 SJ is granted when 1 party fails to establish the existence of an element essential to their case

Other methods of pretrial disposition:

a. Default Judgment- Rule 55- D fails to answer complaint entirely or fails to defend

b. Dismissal- if P does not obey order of ct. during proceedings

c. Voluntary Dismissal- Rule 41 (a)- P asks for, if they want to start over.

F. Trial

voir dire- jury selection

peremptory chal

ion over a person whenever their debtors were present in that state.

· This would be decided differently under Shoe standards

International Shoe v. Washington, 1945

· Divides jurisdiction into 2 types: General and Specific

· General- allows any claim to be brought

· Systematic and continuous contact

· State of incorporation or principal place of business for corps.

· State of domicile for individuals

· Specific- if general jurisdiction is not satisfied, state may still have personal jurisdiction over D.

· If D has “certain minimum contacts such that maintenance of a suit does not offend traditional notions of fair play and substantial justice” (TNFPSJ)

· Whereas Pennoyer looked for presence, Shoe examines contacts w/ state, and if contacts give rise to lawsuit.

Minimum Contacts:

· Looked at to determine sufficient presence in forum state

· Suit must arise out of contacts

· D must have “purposefully availed” himself to laws of forum state

· Purposeful availment- to enjoy protection of laws of state while being subject to laws if doing business

· Look at every single minute contact D had w/ forum state. Then analyze to determine if they are sufficient. Then, if yes, determine if suit arises from said contacts

Traditional Notions of Fair Play and Substantial Justice:

· Is it fair and just for D to be sued in forum state?

· Very elastic- judges have discretion

· Things cts consider to decide if suit violates TNFPSJ

· Burden on D to be tried in forum state

· Interest of forum state in adjudicating the dispute

· P’s interest in convenient and effective relief

· Interstate judicial systems’ interest in obtaining efficient resolutions

· Shared interest of states in furthering fundamental substantive social policy

§ Shoe did away w/ strict requirement of actual presence as required contact. It modified Pennoyer to include corporations and growth of interstate commerce.