Civil Procedure I
MW 9:35 a.m.
January 25, 2016
Tips in life
Never put yourself in the position where an attorney you work for answers a question you ask with the response – “what does the rule say”
If you want to be indispensable in the law office in which you work, become an expert in the rules of procedure.
Do not allow opposing attorneys to know the rules of procedure better than you do.
The rules of procedure are the real reason that clients need lawyers.
Chapter 1 Overview of Civil Procedure
The Idea and the Practice of Procedure
Clients, Lawyers, Procedure, and Strategy
Where can suit be Brought?
Personal Jurisdiction – when can a court exercise a jurisdiction of someone.
Subject-Matter Jurisdiction –
28 U.S.C. Sec. 1331 – any dispute that arises under federal law. Federal question.
28 U.S.C. Sec. 1332 – disputes between the citizens of different states. Diversity jurisdiction.
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 cost, and is between –
Citizens of different states (they may use the federal courts)
28 U.S.C. Sec. 1367 – supplement jurisdiction can get claims into federal courts where the court would not normally have the jurisdiction.
Fed. R. Civ. Pro. 12(b)(1)
How to present defenses. 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 by motion.
Hawkins v. Masters Farms, Inc.
Issue: Citizenship of the plaintiff?
Rule: Diversity Statute 28 U.S.C. Sec. 1332. This is the legal test to answer the ISSUE. (For purposes of determining whether diversity jurisdiction exists, a person is a “citizen” of the state in which he or she is “domiciled.”
For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).)
Estate suing defendant for negligence of his driving under the tort law of Kansas.
Plaintiff brings the claim by diversity (citizens of different states)
Defendant brings a motion to dismiss based on the Fed. R. Civ. Pro. 12(b)(1) because he says that the plaintiff alleges he is a resident of Missouri but had all the intention of being a resident of Kansas. So he is a Kansas citizens and that changes the subject matter jurisdiction.
28 U.S.C. 1332 (c)(2) – the legal rep. of an estate is only considered to be a citizen of a state if the decedent was a citizen of the state
How does the plaintiff (Creal’s estate) prove citizenship – driver’s license, pay-stubs, insurance, and regularly visited his apartment in Missouri.
How does the defendant (Master’s farm) prove citizenship – had been living there about a year, got married, paid bills, bought furniture at a place in Kansas.
Why bring the case in federal court when you know that there is a risk of challenge in jurisdiction?
Speedier than the state courts
Competence of the trier of fact
Competence of the judge
January 27, 2016
Service of Process – you have to file the papers properly
Stating the Case
The Lawyer’s Responsibility
Rule 11 (a) Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name – or by a party personally if the party is unrepresented. … The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.
(b) – “By presenting to the court a pleading, written motion, or other paper – whether by signing, filing, submitting, or later advocating it – an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Bridges v. Diesel Service, Inc.
Issue: plaintiff filed w/o filing w/ EEOC, is this in violation of rule 11?
Rule: Rule 11
Application: yes there was a violation of rule 11 (although the it was an accident it was still a violation, there is not excuse)
Conclusion: The court chose not to give sanctions.
Plaintiff brings a lawsuit under the ADA (which give the federal jurisdiction)
Defendant moves to dismiss under Rule 11 (b)(2) (attorney did not show the normal competency level of legal research)
Plaintiff’s attorney did exhaust all administrative options by filing with
of the claim asserted by the plaintiff against the defendant.
Rule 14(a) – an “impleader” or “third party claim” where defendant brings in another party to the action in order to assert a claim against this third party because this person is liable to the defendant for all or part of the claim asserted by the plaintiff against the defendant.
“Now that you mention it, I have a gripe of my own”
Rules 13(a) and 13(b) – these are the defendant’s own claims asserted against the plaintiff by means of a counterclaim under Fed. R. Civ. P. 13(a) and (b).
Parties to the Lawsuit
Amendment of pleadings
Rule 19 – required (compulsory) Joinder of parties
Rule 20 – permissive Joinder of parties
Rule 22 – interpleader
Rule 24 – intervention of parties
Larson v. American Family Mutual Ins. Co.
The plaintiff sued for delayed payment of insurance claims
Originally filed in state court against the Ins. Co.
Breach of contract and bad faith tort
Then removed to fed court for diversity of citizenship
Larson is a citizen of Colo. and Ins. Co. is not
Now plaintiff has motion add defendant (the attorney)
Allegations of breach of fiduciary duty, malpractice
RULE 20(a)(1) – “Plaintiffs.Persons may join in one action as plaintiffs if:
(A)they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B)any question of law or fact common to all plaintiffs will arise in the action.”
RULE 20(a)(2) – “Persons … may be joined in one action as defendants if:
(A)any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B)any question of law or fact common to all defendants will arise in the action.”
The defendant say this is done as a civil conspiracy to get this case back into state court because the attorney is a Colo. Citizen.
The court must have the complete diversity of citizenship to continue hearing the case.