Select Page

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

Civil Procedure


Fall 2013

I. Civil Procedure Overview (Ch. 1)

A.The Idea and the Practice of Procedure:

1. Locating Procedure

a) Substantive Law: the rules governing behavior in ordinary life (ie property, criminal law, torts, and contracts)

b) Procedure: “insider’s law”, important to those administering the legal system. Procedural law is the means by which we enforce substantive law and also teaches the acceptable forms for settling disputes.

c) Civil Procedure is the procedure governing action where the defendant is not going to lose their life or liberty as a result of the outcome.

(1) Ritualized pattern to find the truth of the facts of the case so that we can apply the rules to the case ( the problem with this system if religiously carried out would be that it would take forever, people lie, and it would cost too much).

(a) Courts must balance: efficiency, search for finality, and justice (it’s a tradeoff to finding the absolute truth, because we have limited resources).

d) Federalism:

(1) States: trial, appellate, supreme

(2) Federal: district courts, intermediate appellate courts (circuit), and supreme court

(a) 13 Federal Appeals Courts : 11 are geographic, 1 for DC (for U.S. in Federal Court), and 1 Federal Circuit (subject matter: patent, veterans appeals, intellectual property claims)

(b) Federal courts are courts of limited subject matter jurisdiction

i) We find the limits in Art III, Sec 2

ii)Congress has the power to limit the jurisdiction of the federal courts, but not to expand it past what is authorized in the Constitution

(1) example- Constitution may give the authority to the federal courts, however, congress can say “federal courts are overburdened, we won’t permit them to hear this type of case”

(3) States and Federal courts often have overlapping jurisdiction.

(a) all states have at least one court of general jurisdiction (can hear any case, even Federal, with few exceptions that can only be heard in Federal Court- admiralty, patent, copyright, bankruptcy, etc).

2. Clients, Lawyers, Procedure, and Strategy

B.Where Can the Suit Be Brought?

1. Personal Jurisdiction:

a) A court in the U.S. cannot exercise power over a defendant if doing so would “deprive a person of life, liberty, or property without due process of law”

(1) Constitutional “due process of law” clause:

(a) 5th amendment= federal government

(b) 14th amendment= state government

b) The state in which the court sits must have some connection with the defendant or the events giving rise to the action

c) Personal jurisdiction is defendant focused (the court’s ability to have power over the defendant)

2. Subject Matter Jurisdiction:

a) jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of person or the status of things.

b) General jurisdiction:

(1) A court’s authority to hear a wide range of cases, civil or criminal, that arise within its geographic area; a court’s authority to hear all claims against a defendant, at the defendant’s place of domicile or business, without any showing that a connection exists between the claims and the forum state

(a) all states have at least one court of general jurisdiction

c) Limited jurisdiction:

(1) Courts of limited jurisdiction can only hear those cases specifically authorized by statute.

(2) Congress can set limits on the scope of federal courts example- constitution may gave the authority to the federal courts, however, congress can say “federal courts are overburdened, we won’t permit them to hear this type of case”.

(a) Congress cannot expand the scope of federal courts

(b) all federal courts are courts of limited subject matter jurisdiction

i) Professor Czarnetzy: If you forget what to write on an exam, write that.

d) Constitution, Article III, Section 2:

(1) The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;- to all Cases affecting:

(a) Ambassadors ( other public Ministers and Consuls)

(b) admiralty and maritime

(c) Controversies to which the United States shall be a party

(d) Controversies between two or more States

(e) Between a State and Citizens of another State

(f) Between Citizens of different States

(g) Between Citizens of the same State claiming land grants of different States

(h) Between a State or Citizens thereof and foreign States, Citizens, or Subjects.

(2) In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

e) Statutes authorizing the SMJ of federal (district) courts:

(1) 28 U.S.C. § 1331: Federal Question

(a) “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, law, or treaties of the United States”

(2) 28 U.S.C. § 1332 (a): Diversity of Citizenship

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs and is between-

i) citizens of different states

ii)citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.

iii) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

iv) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States

f) Hawkins v. Masters:

(1) Case filed by P in federal court on the basis of diversity jurisdiction. D filed a subsequent motion to dismiss for lack of subject matter jurisdiction. The D’s motion to dismiss was granted. The P is now appealing.

(a) Domicile= physical presence + intent to remain indefinitely

(b) Two ways to file a motion for lack of Subject Matter Jurisdiction:

i) A facial attack on the sufficiency of the complaint’s allegation as to SMJ

ii)A challenge to the actual facts up which subject matter jurisdiction is bases (used in Hawkins v. Masters)

(c) 12(b): Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses to a motion:

i) 12(b)(1): Motion to Dismiss Standard (Lack of Subject Matter Jurisdiction)

(2) 28 U.S.C. § 1332

(a) An example of Congress limiting the scope of the federal courts (more that $75,000)

(3) Reasoning: thee defendant mounted a factual attack on the plaintiff’s allegations of diversity subject matter jurisdiction. The plaintiff, as the party seeking federal SMJ, bears the burden of proving that the jurisdiction is proper. The presumption is always against federal jurisdiction .

(4) Notes on the Case:

(a) Why is this a quintessential procedural case?

i) At the conclusion of this case, we still have yet to resolved the question of negligence (the substantive issue in the case). Rather, we have learned where (in what court system) the rest of the case will proceed.

(b) What did the parties do that led to this decision?

i) Plaintiff filed a complaint stating a claim for damages for wrongful death

ii)The defendant then filed a “motion” (a request for the court to do something)

(1) in this case a 12(b)(1)

(c) Why do the plaintiff’s lose?

i) Troy, KS is sixteen miles from St. Joseph, MO.

ii)Mr. Creal conducted the majority of his business

(b) Rule 8(a)(2) a short and plain state of the claim showing that the pleader is entitled to relief

(c) Rule 8(a)(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

e) 28 U.S.C.A. § 1441: Removal of Civil Actions

(1) Generally: Except as otherwise provided by Act of Congress any civil action brought in a state court of which the district courts of the United States

3. The Response- Motions and Answers

a) Pre-Answer Motions

(1) All the 12(b) “motions are motions to dismiss for …”

(2) Rule 12(b)(1): Motion to Dismiss; lack of subject matter jurisdiction

(3) Rule 12(b)(3): Motion to Dismiss; lack of venue

(4) Rule 12(b)(6): Failure to state a claim upon which relief can be granted

(5) Rule 12(e): Motion for a More Definite Statements

(a) A party may move for a more definite statement of pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court order a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

b) The Answer

(1) The document in which the defendant responds to the claim. The defendant must wither admit, deny, or neither admit nor deny (insufficient information). If the defendant does not answer every single allegation, the defendant has admitted by default. After answering every claim the defendant can counter-claim; if there are legal defenses to the Plaintiff’s claim the defendant brings them up now (statute of limitation, defendant is an infant in the eyes of the law)

(2) Rule 8(b)(1) Defenses, Admission, and Denials. In general- in response to a pleading a party must:

(a) state in short and plain terms its defenses to each claim asserted against it; and

(b) admit or deny the allegations asserted against it by an opposing party.

(c) Rule 8(b)(2): Denials- Responding to the Substance. A denial must fairly respond to the substance of the allegation

(d) Rule 8(b)(3): General and Specific Denials. A party that intends in good faith to deny all the allegation of a pleading- including the jurisdictional grounds- may do so by general denial. A party that does not intend to deny all allegation must either specifically deny designated allegations or generally deny all except those specifically admitted.

(e) Rule 8(b)4: Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(f) Rule 8(b)(5): Lacking knowledge or Information. A party that lacks knowledge or information sufficient to form a believe about the truth of the allegation must so state, and the statement has the effect of a denial.

(g) Rule 8(b)(6) Effect of Failing to Deny. An allegation- other than one relating to the amount of damages- is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.