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

Civil Procedure, Professor Czarnetsky

Spring 2017, Ole Miss Law, Textbook: Yeazell (Aspen Casebook)

Overview of Civil Procedure

“Justice lies in the interstices of procedure.” Interstices are the empty spaces inside molecules. “A small intervening space”
“A law without a remedy is not a law at all.”
Procedure: a system by which we settle disputes. There must be fairness. A system of rules about how we go about solving the substantive disputes.
Unless we put as much thought into the procedures for vindicating substantive law as we put into the substantive law itself, we might as well just flip coins.
Civil vs other procedures:

Civil – the procedure that governs civil cases – those that are not criminal. Criminal cases => you can lose your liberty.
Private parties bring about civil cases. The state can bring about criminal

Federal Judges are appointed for life;
State judges are subject to electoral approval.
Federal courts draw from a larger and more diverse citizenship for potential jurors.
Where do Federal Regulations come from?

Administrative agencies are like the 4th branch of Gov’t.
Federal Rules of CP are rules that congress passes because they have the power to establish federal courts and congress has the authority to do whatever is necessary and proper to set them up.
What good would a court be with no rules? Congress has delegated that power to….
Are the 8/9 justices of the SCOTUS doing this? No. They delegate to a committee that they set up made of lawyers, law profs and judges.


which court has the power to decide this case?
“where can I, or where must I, bring this lawsuit?”

Personal Jurisdiction

Does the particular court have power over the person of the defendant?
Or “The power of a court to adjudicate the rights of a particular person
A suit may only be brought in courts where the defendant is subject to personal jurisdiction. This applies in federal and state courts.). The court (fed/state) must have authority to render a judgement against the defendant. Jurisdiction over a defendant’s personal rights, plaintiff rarely challenges personal jurisdiction because they initially choose where to file the claim.
Citizenship is evidences by domicile:

Two criteria of domicile: Physical Presence and Intent to Remain in the State.

Residence – where the person lives
Intent to reside indefinitely – statement of person’s intent combined with objective things like driver’s license, voter registration, income tax filed, etc.

28 U.S.C. §1332 gives federal courts jurisdiction over actions arising between citizens of different states (diversity jurisdiction) for amounts that exceed $75,000. Congress cannot give courts more power than the Constitution gives them.

Corporations have two domiciles: 1) State of Incorporation and 2) Principle place of business.
Hawkins v. Masters Farms, Inc. The issue was whether a federal court can hear this case. He can’t.

Rule of Law: A person is a citizen of the state in which he is domiciled, established by physical presence in a place and the intent to remain there.
Issue: Whether a person who lives in Kansas but still retains substantial contacts with his former domicile in Missouri is a resident of Kansas.
Start with 1332, and then say the legal analysis of the case

Issue – whether the plaintiffs are citizens of a particular state. So, how do you show that they are/are not?
Rule – The test for whether or not a person is a citizen of a state is to look to where they are domiciled.
This is not in the statute, but the word “citizen” is in the statute – this is what needs to be defined. Page 9, bottom:

“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).”
SO: 1) Physical presence and 2) Intent. Your previous domicile remains in place until the test for domicile is satisfied anew.

Subject Matter Jurisdiction

Can the judge hear this kind of case?
The power of a court to hear the subject matter of a particular case.
Also can be put as: Refers to court’s power to adjudicate matters based on their relationship to specific issues in their purview.
Czar: “power to hear a particular type of case.”
Choice between state and federal court;
Jurisdiction over the nature of the case and the type of relief sought.
A court can be of limited or general jurisdiction:

Courts of General Jurisdiction – these courts have legal authority to hear almost any case unless there is a legal authority that limits their power. All states have at least one court of general jurisdiction.
Courts of Limited Jurisdiction – only have the authority to hear those cases authorized by the statutes that created them.

Federal Courts are all limited jurisdiction!!
Article III §2 of the US Constitution sets the outer bound of subject matter jurisdiction of the federal courts

This article is designed to protect people from the possible prejudice of state courts.

Congress can further restrict it (like with the statute that says a case has to be worth more than 75K for diversity jurisdiction

This limits for efficiency.
They can’t add more – that would require an amendment to the Constitution.

Article 2 § 3 of Constitution: puts limits what types of cases a federal judge may hear. And that is consistent with the framers intent to limit the power of the federal government.
Diversity Jurisdiction is a form of subject matter jurisdiction. 28 U.S.C. § 1332 (a) Federal court jurisdiction that lies where the parties hold different citizenship and the amount in controversy exceeds a certain threshold.
Czar: Why would the framers have put this in? The founders were concerned about local prejudice against outsider defendants. The southern farmers who were funded by northern banks were worried about northern courts/juries having prejudice against them.
Rule 12(b)(1): Motion to Dismiss Standard:
(1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter jurisdiction; or
(2) a challenge to the actual facts upon which subject matter jurisdiction is based

Venue – 28 U.S.C. § 1391

Venue means “place of trial;” it further localized the case – it just further narrows down which c

lief; and
A demand for the relief sought, which may include relief in the alternative or different types of relief.

Rule 11 – Any assertion that you make in court must be supported by

1) an investigation into the facts reasonable under the circumstances, and
2) good faith argument under the law as it exists/good faith argument for an extension, modification, or reversal of the law.

Primary goal is deterrence – deterring lawyers from bringing frivolous suits. It holds attorneys to high standards when filing a lawsuit.

Lawyer is responsible for making a reasonable investigation of both the facts and law of every case before filing.
If a lawyer breaks Rule 11 he may be subject to sanctions by the court

Sanctions can include: attorney’s fees for the other side, fines, or other nonmonetary devices.

Bridges v. Diesel Service, Inc.

Issue: Whether sanctions are warranted where counsel fails to file an EEOC complaint before bringing a discrimination suit.
Rule: Rule 11 b (3) and c. Page 35 in Rule Book. Court says “Rule 11 “imposes an obligation on counsel and client analogous to the railroad crossing sign “stop, look and listen.” It may be rephrased “stop, think, investigate, and research before filing papers either to initiate the suit or to conduct the litigation.” Rule 11 is only violated if at the time of signing, the signing of the document filed was objectively unreasonable under the circumstances. “The rule does not permit the use of the “pure heart and empty head” defense. Rather, counsels’ signature certifies the pleading is supported by a reasonable factual investigation and a “normally competent level of legal research.”

For test – know the standards for a lawyer under Rule 11

A lawyer in presenting a doc to the court, signing or making an argument to the court certifies several things. 1. That you are not filing the doc in order to harass the other side of to be overly burdensome – only to be zealous in your support of your client. 2. That there is law to back up the claims or defenses or other legal contentions or there’s a valid argument that the law is wrong 3. Everything is based upon an investigation that is reasonable under the circumstances
If rule 11 is interpreted in such a way that every time an atty makes an error they must pay sanctions, then we will be close to the british rule that causes either side to pay the legal fees of the other side.
11(c)(4) Sanctions – they don’t have to be monetary sanctions. It can be something that mentally punishes the attorney. They could be forced to go to a CLE on the topic they screwed up, for example.