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

Civil Procedure- Czarnetsky
8-30-05
Whether a court can hear this type of case (subject matter jurisdiction) and can this court enter a binding ruling in this case (personal jurisdiction).
A federal judge before he/she can hear a case they must make sure they have subject matter and personal jurisdiction and the venue must be appropriate for the case.
Venue is a result of a statute §1391, Title 28 from Congress not in the Constitution. Congress explains given that if one judge has SMJ then all judges have it. PJ is where the plaintiff and the defendant are located. The venue is where it makes most sense for the plaintiff to bring the suit.

A lawsuit has begun not when the complaint has been filed b/c you do not have to pursue it, it is when you officially have notified the defendant that they are being sued (Service of Process). If there is a defect in the Service of Process (Rule 12b of Civil Procedure) then the suit has not begun and that the case may be dismissed.

§1331, Title 28- Federal judges can hear cases about federal statutes
Bridges v. Diesel Service
The plaintiff’s lawyer should have filed with the EEOC first before going to court so they could have determined if the ADA statute applied in this case. It is mandatory that the case is filed with the EEOC first in order to cut down on the number of these cases b/t employees and employers that question a federal statute. The defendant’s lawyer tries to get the case dismissed b/c proper procedure was not followed and sanctions under Fed. Proc Civ. Proc. Rule 11b (provisions 1 and 2).
The defendant’s sanctions were denied and the case was dismissed without prejudice (the case could be re-filed).

Bell v. Novick Transfer Co. 1955 Maryland trial court
Federal judge is writing the opinion b/c of §1441 and 1446, 28 U.S.C to determine if the case should be dismissed (from state to federal court b/c of concurrent jurisdiction b/c of subject matter jurisdiction and the parties were from differing states). The defendant wanted the fed. Court to hear the case b/c of the differences of the elements of a complaint and to dismiss the case due to the lack of evidence stated in the complaint. The dismissal is denied. The case continues. Infant plaintiff was riding in a car and was hit by a tractor trailer.
A revolution in Civ. Proc. Law to make civil justice.
A motion for a more definite statement ►Bill of particulars

9-1-05
Various responses to complaint►ex.
Can be procedural responses or case related motions:
Pretrial motion to dismiss-demurrer
Motions for impleading- bringing in other responsible parties
Counterclaim- counterclaim plaintiff is defendant in original suit.
Crossclaim- b/t two parties on the same side of the original suit.
Compulsory or permissive Counterclaims and Crossclaims
Answer to complaint- you must address every factual or legal allegation to the complaint, otherwise, it is deemed admitted as uncontested. You can include affirmative defenses
[Statute of limitations, legal excuse from liability].

Bridgeport Music v. 11C Music- Joinder dispute
Sampling is snippets of other songs that you do not have authority to use. The Plaintiff sued 770 music and entertainment companies- on over 477 counts of alleged copyright infringements.
The court wants the plaintiff to sue each defendant individually b/c they are not properly joined and all the people cannot fit together in the courtroom.
Source of law: Rule 8 and 20- you may combine cases together if they are complicated and are related occurrences and common transactions.
Similar of class actions

Butler v. Rigby
Mandatory disclosure of Rule 26 of Civ. Pro. at the beginning of the discovery procedure.
Discovery scope and limits- issued by protected order
Any matter is discovery if it is not privileged or if it falls into any of the three 26(b)(2) categories.
If you propound discovery to the other side, ask yourself is this relevant or is it reasonably calculated to lead to other relevant info?
What matters are privileged?
All privileges are ancient and old common law providence, and new privileges are usually not accepted.
Privileges are vital for frank, honest, and open communication b/t two privileged people.
The D wanted a list of the patients that the doctors of the P had treated.
Doctor-patient privilege

Houchens v. Am. Home Assurance Co.- breach of contract
The missing person could not be claimed on the Ins. Policy b/c there was never proof of an accident or evidence of his death.
Motion for Summary Judgment► in our system it is the jury that decides the disputed facts by the 7th amendment in federal court, but states are not always bound by this system. Jury’s are not necessary to decide the outcome of the trial if there are no disputed facts. A judge can rule on the suit if this is the case.
The motion by the defendant is granted and affirmed by the appeals court.
The plaintiff relied on the Virginia law that after 7 years someone is assumed dead, but the contract stated that the death has to be accidental…..there was never any evidence of the way he supposedly died, so no way to decide if it was accidental or not.

9-13-05
In a civil trial, parties have a right to a jury trial unless they waive their rights and choose a bench trial. Choose a jury pool by lawyers asking questions for potential jurors. Defendant opens or chooses to defer his opening statement until after the plaintiff. Burden of proof is preponderance of evidence (lower burden than criminal) in a civil case and burden of proof beyond a reasonable doubt in a criminal case. Judge is a neutral party in trial courts of general jurisdiction and federal district courts and after each party to the suit rests the judge issues special instructions to the jury in deciding the case. A judge can direct a verdict to the jury. Both counsels may submit jury instructions to the judge for him to consider. There are model jury instructions in book form that can be used by the lawyers to help write their submittals. Lawyers need not to slant the law to favor their client b/c the judge will not look favorable on the party. A verdict is not a judgment/order until the judge enters the judgment on the verdict. The J

n to make exceptions, but they usually favor finality of decisions. The case can be appealed to the higher court after the final order or after the trial is concluded and the interlocutory orders can be disputed then.

Pennoyer v. Neff- diversity case heard by the federal court.
Lack of personal jurisdiction for the first case b/t the lawyer who sued Neff for attorney fees. He was never personally served b/c he was not a resident of the state. The lawyer wins by default judgment b/c he never showed up for court and never answered the complaint. This means that the court deems all the allegations of the plaintiff as true and they do not try the case and enters an order for the plaintiff. Mitchell has Neff’s land which was in the state that the lawyer lived in seized by the sheriff for payment of the order. The sheriff sells the land to Pennoyer. Neff finds Pennoyer on his land and discovers that his land was sold and sues Pennoyer to be ejected off the land. The issue is whether Pennoyer has valid title to the land. The other issue is whether or not that the court of Oregon had personal jurisdiction over Neff and if not than the order could not bind Neff for the suit.
Neff’s argument:

Pennoyer’s title is invalid b/c there is a defect with the title.
The defect was that the court order that the sheriff acted on for the sale was invalid.
The courts order of default judgment is invalid
The asserted flaw with the judgment is concerning the service of process by constructive notice (indirect notices) which is still constitutional to this day. The court put that issue aside.
The court did not have personal jurisdiction over Neff and the order was not binding. This was affirmed by the Supreme Court.

9-20-05
Whether or not the order of the original default judgment of Neff within the courts power and if it is valid?
The court had the power to hear cases of personal jurisdiction, but it did not have the power to hear Neff and Mitchell’s-attorney case b/c it lacked personal jurisdiction over Neff. We don’t know where Neff was domiciled at the time of the trial. If a person is served with a service of process within the state, then you have presence within that state. If a person is not of that state, then the service of process is not sufficient evidence to provide a presence of that state. Due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered. States