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

Civil Procedure I Outline
Fall 2009
I.                   OVERVIEW OF PROCEDURE
-MS in 5th Federal Circuit (MS, LA, TX)
-13 circuits total-11 circuits + DC + Fed’l Circuit
A.     Where Can the Suit Be Brought?
1.      Personal Jurisdiction:
–          Power of ct over a particular D; Whether or not a particular ct can enter a binding order against defendant(s); Must have some connection with D or accident that gave rise to plaintiff’s claim; focuses on D; ct must have sufficient power over defendant
–    General v. Specific (explained in Shoe spectrum)
–          Hawkins v. Masters Farms- PJ decided by domicile
2 Criteria for Domicile:
o   Residence
o   Intent to reside indefinitely; statement of person’s intent combined with objective things like driver’s license, voter registration etc…
2.      Subject Matter Jurisdiction:
–          Power of ct to hear a certain type of case; exercise authority over 1) nature of case 2) type of relief sought
A.     General SM Jurisdiction: Can hear any claim b/t any persons unless there is a legal authority saying they can’t hear particular kind of case (i.e. probative) (may be called circuit court, district ct, superior ct, ct of common pleas, or in NY supreme court) *State Trial Courts*
–          All state cts have at least 1 trial ct of general jurisdiction.
B.     Limited SM Jurisdiction: Can hear only cases specifically authorized by statutes that set up particular court. Based on nature of claim and citizenship of parties.
–          All Federal Courts are limited jurisdiction b/c outlined in Art.III § 2, or fed. 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.
3.      Venue:
–          Actual courthouse; a way that the legislature further directs cases where the case is best heard; further localizes the case. Purely STATUTORY, not something Congress had to pass under Const.  
–          “A suit lies open to a defendant’s challenge unless the ct has smj, personal juris, and venue.”
–          28 USC 1391: proper venue found only in: where defendant resides, events occurred giving rise to claim, or any def subject to personal jurisdiction
–          Federal Cases should be brought: (a) Where D lives, (b) Where CoA arose, or (c) if a and be don’t give fed’l ct- wherever D has PJ
4.      Service of Process
–          Summons issued by ct w/ complaint. Two basic means of service(Rule 4)- waiver of service and summons served.
B.     Stating the Case
1.      The Lawyer’s Responsibility; Bridges v. Diesel Services, Inc. (Disability- ADA)
–          Rule 11: sanctions for improper filing, frivolous lawsuits
–          Imposes an obligation on counsel too stop, think, investigate, and research before filing papers; only violated if exceptionally unmeritorious- “signing of document filed was objectively unreasonable under the circumstances”; Primary goal: deterrence of improper conduct
2.      The Complaint; Bell v. Novick Transfer Co. (infant car wreck)
–          Rule 8(a): requires a short plain statement; sufficiently states CoA
3.      The Response (Motions and Answer)
–    Pre-Answer/D 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)6.
–          Rule 12(b)- the ability to use defense to a claim for relief in a pleading
o   Rule 12(b)(1) Motion to Dismiss Standard (Hawkins)
o   Motion for lack of subject matter jurisdiction:
1.      A facial attack on sufficiency of complaint (assume pl true)
2.      Challenge to actual facts smj is based (ct has discretion on facts)
–    Rule 12(b)(6)- failure to state a claim upon which relief can be granted; state cts say Motion to Demurrer
–    Rule 12(e)- Rule of particulars; for a more definite statement
–       Answers: responds to allegations of complaint (admit, deny, or not enough facts)
o   Rule 8(b)- Admit or deny truth of allegations- if not answered, deemed admitted
1.       Rule 8(b)(5)- A party who lack sufficient knowledge to form a belief about truth from allegation must say so, has effect of denial
o   Rule 8(c)- Affirmative Defenses- statute of limitations, lacks jurisdiction
o   Counterclaims- claim for relief asserted against opposing party
o   Cross-claims- against co-party
o   3rd party claims- against party not in action (to implead)
4.      Amendment of Pleadings
–    Rule 15(a)- “The ct should freely give leave to amend when justice so requires.”
–    Rule 15(b)- Ct may grant continuance; allow amendment to pleadings
–    Rule 15(c)- Relates back to date of original pleading
C.     Parties to the Lawsuit
–    Permissive Joinder- Rule 20- May join- (1) assert right to relief jointly (2)any question of law or fact arise common to all
–    Compulsory Joinder- Rule 19- Must join b/c invokes rights that are joint; (1) if ct cannot grant relief without them (2) claims interest relating to subject of action
–    Intervention- Rule 24- (1) right to intervene by a fed statute (2) claim in subj of action, and w/out would impair movant’s ability to protect (3) claim/ defense shared with admin action (4) government agency or officer
–    Class Action- Rule 23- allows some parties to stand for entire group (ticket holder against airline)
–    Joinder; Larson v. American Family Mutual Ins. Co. (lawyer in w/ insurance co.)
o   Allowed under Rule 20: all persons may be joined in one action as Ds if there is asserted against them jointly, severally, or in the alternative “any right to relief….arising out of the same occurrence or transaction, or series thereof. TRANSACTIONAL RELATEDNESS
o   28 USC § 1447(c)- If after removal the P seeks to join additional D whose joinder would destroy SMJ, the ct may deny joinder, or permit joinder and remand the action to the state.            
o   2 aspects of joinder: permissive (out of same occurrence) and necessary (if can’t proceed w/out)
D.     Discovery (Factual Development) (Rule 26(b)(1)-broad scope of discovery)
1.      Disclosures- names of witnesses, documents
2.      Production of Documents- Rule 34 or 45
3.      Oral Depositions­- Rule 30 or 45
4.      Written Interrogatories- Rule 33
5.      Physical and Mental exams
6.      Requests for admissions
–    Butler v. Rigby (hospital documents)
o   List of past and current patients is privileged from discovery.
o   Rule 26(c): Three restrictions limit civil discovery:
1.      Relevant to a claim or defense in the case
2.      The requested info may be privileged (against self-incrimination; doctor-patient privileges)
3.      May be undiscoverable if potential for “annoyance, embarrassment, oppression, or undue burden or expense” outweighs its value
–          Credibility of witnesses is always a live issue at trial.
E.     Summary Judgment (Pretrial Disposition)- Rule 56- filed after discovery and granted if NO issue of material fact
–    4 ways to dismiss a case:
o   1. 12(b)(6) – Failure to state a claim upon which relief can be granted
o   2. Summary Judgment (Rule 56(c)) – no disputed facts; no genuine issue of material facts. On motion for summary judgment, ct must view the facts in light most favorable to non-moving party.
o   3. Directed Verdict Motion (Rule 50(a)) – No evidence in support of claim; “Judgment as matter of law”
o   4. Judgment Notwithstanding the Verdict (JNOV) – judgment for one party even though jury verdict has been rendered for opposing party.
–    Houchens v. American Home Assurance Co. (husband in Thailand disappears)
o   Under Rule 56, a fed. ct must enter summary judgment if after complete discovery a party fails to show that the evidence viewed in the light most favorable to that party, is sufficient to establish the existence of an essential element on which that party has the burden of proof.
o   Preponderance of the evidence- more likely than not
–    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.
c.       Voluntary Dismissal- Rule 41 (a)- D asks for, if they want to start over.
F.      Trial
–    Voir dire- jury selection
–    Peremptory challenges- don’t need reason to dismiss juror (limited)
–    Challenging for cause- argue to ju

reign (non-resident) Δ has property in the forum state, Π can have property attached by court. This would provide the state ct w/ PJ over a Δ. Even if Δ is not in state, state has PJ if Δ has property purchased before the action. This property DOES NOT have to be the issue in the dispute.
o   Pennoyer v. Neff TEST: If the (1) person can be found in the state, OR (2) they consent to jurisdiction, or (3) their property is there before the action, D is subject to personal jurisdiction in the state.
·         Pennoyer’s conceptual scheme:
1.      Power
a.       In personam
b.      In rem
c.       Quasi in rem
2.      Consent
a.       Non-resident, who did not own property could designate someone to accept service.
b.      Voluntary consent by appearing in ct
3.      Notice
a.       In personam – notice (SOP) had to be either personal service within the state or a seizure of land (through “in rem”). Almost guaranteed that Δ would receive notice.
b.      In rem- publication notice was OK. Very slight notice needed.
·         Aspects of Pennoyer that are still good law:
1. Tagging- Confirmed by Burnham
2. Full Faith and Credit – Collateral Attack
3. Consent
4. Made personal jurisdiction into a 14th Amendment issue
·         Not Good Law
1. Constructive notice- It is now considered a last resort (Mullane)
2. Quasi in rem and in rem- must be evaluated by Int’l Shoe and its progeny
–    REMEMBER: Objecting to Jurisdiction: RULE 12(b) – Under federal rules, Δ must bring up an objection to jurisdiction immediately or lose the chance to object altogether. (20 days to answer)
o   Options in objecting to jurisdiction:
a.       Direct Attack – “special appearance.” D can appear in the original action at the beginning of the suit and object to the court’s exercise of jurisdiction over him. (only in state ct.)
o   Collateral Attack – D can ignore the original suit entirely. The risk of that is that a default judgment will be entered. P will then attempt to bring the judgment to D’s home state court. If that judgment is later deemed enforceable by his home state’s court, D will have lost his suit without ever having had a chance to defend.
B.     POWER
a.       Redefining Constitutional Power
–    International Shoe v. Washington
o   For a state to subject a nonresident D to in personam jurisdiction, due process requires that he have certain minimum contacts w/ it such that maintenance of suit does not offend traditional notions of fair play and substantial justice.
o   **Key test from Int. Shoe- Assert with summons, and establish that D has such minimum contacts with it such suit does not offend traditional notions of fair play and substantial justice.
o   “Quality and Nature” of contacts of the contacts:
o   Divides jurisdiction into 2 types: General and Specific
1.         General-  allows any claim to be brought
o   Systematic and continuous contact
o   State of incorporation for corps.
o   State of domicile for individuals
2.         Specific- if general jurisdiction is not satisfied, state may still have personal jurisdiction over D.
o   If D has “certain minimum contacts so that maintenance of a suit does not violate traditional notions of fair play and substantial justice.
§ Whereas Pennoyer looked for presence, Shoe examines contacts w/ state, and if contacts give rise to the lawsuit.