Select Page

Civil Procedure I
University of Mississippi School of Law
Hoffheimer, Michael

Civ Pro
Fall 2012
Ole Miss Law
Cases not found in outline
Goodyear Dunlop Tires Operations, S.A. v. Brown
Personal Jurisdiction:  judicial power over the person or property; suit may be brought in forum where ∆ is subject to personal jurisdiction
Hawkins v. Masters Farms: personal jurisdiction established by domicile
*for purposes of determining whether diversity jurisdiction exists a person is a citizen of the state in which he or she is domiciled
1. residence—where person lives
2. intent to remain indefinitely
Subject Matter Jurisdiction: power or authority of a court to decide a particular type of legal dispute
                *General: court can hear any claim unless legal authority limits
                *Limited: courts limited by statute to hear certain types of cases (all federal courts are limited)
                *Concurrent: when jurisdiction overlaps between two courts
-all states have at least one trial court of general subject matter jurisdiction
-all federal courts are courts of limited subject matter jurisdiction
Diversity Jurisdiction: U.S.C §1332—civil actions between citizens of a different state AND where matter exceeds $75K may be heard in federal court
-§1332(c)(2)—the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same state as the decedent
Venue: U.S.C. §1391(a)(1)—venue proper in judicial district where ∆ resides; (a)(2)—a district where a substantial amount of events occurred
Service of Process: summons issued by court with complaint; two basic means of notice (Rule 4)
1.       Waiver of service: informal and inexpensive; π  mails ∆ complaint and forms 1A and 1B and if the ∆ mails back a signed copy of form 1B the case can continue
2.       Summons: formal and expensive; if ∆ refuses to waive service a summons must be issued by the court (signed and sealed by clerk) and served on ∆ by process server
American Rule:  In the US parties pay their own litigation costs (the specific charges taxed by the Court) and attorney fees. However, there are exceptions to this.
Rule 11—Sanctions
11(a) Everything must be signed and if it is properly corrected then it is stricken
11(b) attorney presenting is required to make reasonable (under the circumstances) investigation as to the facts alleged
(1)    it is not for an improper purpose
(2)    must ensure that claim is supported by existing law—UNLESS attorney has a non-frivolous argument for extending, modifying, or reversing existing law
(3)    all facts must be supported by evidence—UNLESS reasonable belief that will likely have evidentiary support at a later time but it must be specifically identified
(4)    factual denials need to be specifically identified
11(c) If there has been a violation there has to be notice and a reasonable opportunity to respond
(1)    court is not obligated to impose sanctions but MAY do so according to their discretion
(2)    Motions must be made separate from any other sanctions and it is served to the other side but not filed with the Court. Attorney has 21 days to correct wrongdoing
(3)     Whoever committed the violation must show cause why they were not in violation
(4)    Sanctions are determined what suffices to deter from happening again and can include
a.       Nonmonetary-apology
b.      Fine to the Court
c.       Fees to the opposing side
                                                                           i.      Must have filed motion
                                                                         ii.      Only when the Court finds it necessary to deter
Bridges v. Diesel Service: π attorney did not investigate and find that claim should have been filed with EEOC which was a violation of Rule 11(b); Plaintiff had to file a motion to dismiss and a separate motion to bring about Rule 11 violation asking for sanctions. Court declined to impose sanctions because the mistake was procedural and not blatantly frivolous
-Dismissed without prejudice means that it can be filed again, with prejudice means that it cannot be brought back
Complaint: serves to i) commence the action and ii) inform the ∆ of the nature of the π action
-if the allegations are not sufficiently detailed or specific the ∆ is not afforded a fair opportunity to formulate an appropriate response
Bell v. Novick Transfer Co:In the Plaintiff’s Complaint the Defense claims that they did not explain how the Plaintiffs were negligent. FRCP Rule 8(a)—requires only a short and plain statement of the claim showing that the pleader is entitled to relief. This is currently in limbo with the Supreme Court in complicated matters
                *FRCP 12(e): motion for a more definite statement
Response—Motions and Answer
1. If no response then default judgment entered against ∆-you do not want this
2. Preanswer motion
a.       Defective jurisdiction, venue or process, or failure to state a claim
3. Types of responses:
1.    Lack of a claim: the substantive law under which π sues must give π a right to sue
2.    Negative defense: deny the truth of the complaint’s factual allegations
3.       Affirmative defenses: example—SOL or immunity
4.       Clarification: factual allegations are too vague, incomplete or confused
5.       Defendant’s claims: counterclaim; cross –claims; third-party claim
Counterclaim: claim against π by ∆; Rule 13(a) and 13(b)
*13 (a) compulsory: must state any claim that at the time of its service the pleader has against opposing which arises out of same transaction or occurrence
                -MUST state now b/c waive right to do so later
* 13 (b) permissive: may state as a counterclaim against an opposing party any claim which is not arising out of any transaction or occurrence
                -already in court in unrelated matter & may take action on plaintiff for other grievance
Cross-Claim: Rule 13(g) claim by ∆ against another ∆;  may state as a counterclaim must arise out of the same transaction or occurrence
Third Party Complaint (impleader): where ∆ brings in a new party—co-∆ (Defendant admits liability but claims another party was liable to them)
*Rule 14: a party who is or may be liable to defendant for all or part of clai

nd the Court shall which is (mandatory)
-There has to be no genuine dispute as to any material fact and the movement entitled to judgment as a matter of law
-must be viewed in light most favorable to party opposing the motion
-court can give partial summary judgment and rule on parts of the case
Houchens v. American Home Assurance Co.: π husband disappeared in Thailand and trying to collect on accidental life insurance policy; court holds that Summary Judgment is granted when one party fails to establish an element essential to their case
Motion for Judgment as a Matter of Law-use this term on exam: Rule 50(a)(1) can be made during the trial when the other side has fully been heard
-standard for granting: when a reasonable jury would not have a legally sufficient evidentiary basis judge may grant Motion for Judgment as a Matter of Law on that part of the case
-May be given if motioned for before it goes to the jury
-Historically MSJ called a motion for directed verdict if it comes before the jury comes out
– Judgment N.O.V took place after the jury came out
Other Methods of Pretrial Disposition
a)      Default judgment—Rule 55 ∆ fails to answer complaint entirely or fails to defend
b)      Dismissal—if π does not obey a court order
c)       Voluntary dismissal—Rule 41(a) gives the π the right to restart her lawsuit by seeking a voluntary dismissal
-jury selection (voir dire)
                *peremptory challenges: do not have to state a reason (only have a limited number
                *challenging for cause:  must state argument why it juror is not appropriate
-opening statement
-π case in chief
-∆ can move for a judgment as a matter of law
-∆ case in chief
-π motion for judgment as a matter of law
-closing arguments
-jury charge: may object to what was included in instructions under  Rule 51
Post-Trial Stage
Judgment Notwithstanding the  Verdict (JNOV): delayed motion for a directed verdict; where if the party who has the burden of proof on an issue offer no evidence at all on that issue
Norton v. Snapper Power Equipment: court had issued JNOV because required too many inferences that defective part on mower caused the accident; court reversed because jury could have reached π conclusion
-Plaintiff win on appeal and original verdict was upheld
*test for JNOV: only where the evidence so strongly and so favorably points in favor of the moving party that reasonable people could not arrive at contrary verdict