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

Civil Procedure Outline
Professor John Czarnetsky
Fall 2009
I. An Overview of Procedure; where can suit be brought?
A. Subject Matter Jurisdiction (if the case is a federal case, you must ask this)
Subject matter jurisdiction denotes whether a court can hear a particular type of case. A court can be of limited or general jurisdiction:
Courts of general jurisdiction – these courts have legal authority to hear any case, unless there is a legal authority that limits their power; all states have court of general jurisdiction/trial ct.
Courts of limited jurisdiction – only have the authority to hear those cases authorized by the statutes that create the court (e.g. all federal courts are courts of limited jurisdiction).
Art III §2 of US Constitution sets the outer bounds of subject matter jurisdiction (SMJ) of the federal courts, thus allows Congress to place restrictions
Ø Hawkins v. Masters Farms=issue of law concerns title 28 U.S.C. sec. 1332 (interpreting that citizen equals domicile, see below)-which comes from this article
4. Art III § 2 is designed to protect people from possible prejudice of state courts.
Ø Where can SMJ case be heard? Plantiff must evoke SMJ
B. Personal Jurisdiction
1. A suit may only be brought in courts where the D is subject to personal jurisdiction (PJ), which applies to both federal and state courts./* Personal jurisdiction=whether or not a particular court can enter a binding order /judgment against the defendant=focuses on whether the court has power over defendant
Citizenship in federal diversity cases is determined by domicile.
§ Two criteria of domicile: also known as Test of domicile
a.     Residence – where a person lives
b.    Intent to reside indefinitely – statement of person’s intent combined with objective things like driver’s license, voter registration, etc. are determinative.(ex. Training for the military)
§ 1332 gives federal courts jurisdiction over actions arising between citizens of different states (diversity jurisdiction/parties) for amounts that exceed $75,000
C. Venue
Ø Venue means “place of trial”; it further localizes the case – it just further narrows down which court can hear the case; other way to say: way for legislature to direct a case where it thinks society is best heard/it further localizes litigation to wherever most appropriate
Venue is purely statutory (SMJ / personal jurisdiction are constitutional); Venue isn’t from constitution.
D. Stating the Case
Rule 8 (a) (complaint filed by Plantiff under FRCP)– requires a short and plain statement of:
The Reason for federal jurisdiction
The Facts of the incident – why relief is sought
The Type of relief desired
Rebecca Found Tammy trying to write a short and plain statement for the court.
you only have to apply short and simple statements of the matter, don’t have to allege all the facts, see supp.—from notes and in add. To above
Bell v. Novick Transfer Co.
Rule 11 – Primary goal of Rule 11 is DETERENCE (i.e. deterring lawyers from bringing frivolous lawsuits)
§ Attorney’s duty is to “stop, look, and listen”
a.     This means that the lawyer is responsible for making a reasonable investigation of both the facts and law of every case.
§ 11 (b) (2) –
a.     The claims and defenses of the suit must be warranted by law OR
b.    Must be warranted by a nonfrivolous argument for bringing changes to the present law.
*must have a reasonable assertion for basing the facts
§ IF a lawyer breaks RULE 11 he can be sanctioned by the court.
a.     The sanctions are to be what is sufficient in order to deter a further breaching of the rule.
b.    Sanctions can include: attorney fees for the other side, fines, or other non-monetary devices.
§ RULE 11 is NOT a fee shifting device.
§ “Pure heart, empty head” is NOT a defense for a RULE 11 violation.
§ Ex. Bridges v. Diesel Services, Inc.= lawyer got called out of being incompetent = by the ct., lawyer failed to file complaint with EEOC
Rule 19 (b): if you’re going to sue, you’ve got to join the injuring parties in an action in the same suit; Compulsory Joinder
Rule 23: permits several members of one group to join together in a “class” if they’ve all been injured.
      5. Rule 26 (Discovery Rule): Very broad rule, anything that’s not privileged is an open book. Even if the lawyer can prove that it MIGHT lead to something, it’s admissible. It is limited by privileges (such as sometimes society decides that privilege is more important than truth to preserve a relationship) but they are few./add.=from notes= discovery scope and limits/law allows litigants to gather all facts discoverable/it’s meant to be executed -Judges don’t issue discovery; it’s up to the lawyers to do it; most judges do not like listening to discovery disputes=Ex. Butler v. Rigsby (is a discovery dispute) p.31 if needed for more info
Former Adjudication: Difference in claim and issue preclusion: Claim preclusion is a bludgeon that smashes all efforts of a party to relitigate events that have already been litigated and decided in a prior suit. Idea of it is called res judicata (one bite at the apple); Ex. Claiming fraud twice in ct. Issue preclusion is a scalpel that dissects a lawsuit into its various issues and surgically removes from reconsideration any that have been properly decided in the prior action. Idea of collateral estoppel. à
Ex. Car wreck-two different causes/claims rose-but similarities in issues exist –further explanation in Rush v. City of Maples= Two separate claims and if you win you use issues that are common in your second claim—Rush has a claim of property and injury. Rush’s attorney used issue preclusion and it worked throughout entire trial process except when at S.C. They applied claim preclusion to dismiss the case.
So why do we need issue preclusion then? If claim preclusion so broadly precludes relitigation, whether or not an issue was previously raised, what is the need for a separate doctrine? The answer is that issue preclusion is needed because issues already litigated may come up again in later litigation based on separate events.[1] General idea: The idea is, although that first transaction may not be the issue of the second suit, if the issue around which that first suit revolved comes up, it will not be relitigated.
Issue preclusion is narrower: It is narrower in that it does not preclude all possible issues that might have been raised in a prior action but only those actually decided in that action.
1.     Note that issue preclusion only bars issues that were litigated and decided in the prior action; it does not affect claims or defenses that could have been raised but were not.
*most stuff in chapter 1 will not return to in this course?
Specific Jurisdiction
A. Pennoyer v. Neff, 1877
·         Case delineated two types of personal jurisdiction:
In personam- power of a court to render a decision over a person
In rem- power of a court to render a decision over a thing (usually land), procedure to attach thing to get judgment against the person
Ø Importance
1.Every state has exclusive jurisdiction and sovereignty over people and property within its territory.= (*analogy that ct uses is Indep. Nations-meaning state can’t exercise power outside of state (see notes if need more info)
Due process of law would require an appearance or personal service within the state beforea foreign D would be bound by any decision rendered by a state court.
2. 14th Amendment: “Due Process Clause” (Ct. constitutes that amend applies) – prohibits any state from depriving any individual of life, liberty, or property without due process (emphasis of this case)=SC applies it to this case and this case is important today b/c it now dictates the extent of a state’s p.jur power. This means if anytime a D asserts p.jur=it asserts a 14th amend. issue
After Pennoyer, a state could gain personal jurisdiction over a foreign D by:
*    The D being served personally with process within the state
*    The D consenting to jurisdiction by voluntarily appearing
*    Obtaining quasi in rem jurisdiction (see explanation below)
Quasi-in-rem: If foreign (non-resident) D has property in the forum state, P can have property attached by court. This would provide the state court w/ persona

ed; sliding scale
Ø Hypothetical about above: Czarn. Only leaves state to go to Memphis and gets in wreck in Memphis, and can be sued in Miss. For wreck in TN b/c it has p.jur over him/ “Any beef” of his can be heard in MS cts. b/c he has overwhelming contacts/ Hyp. Changed: Czarn gets sued in TN court. Can be sued on the case of hitting that car b/c it’s a special contact
Basically, the closer the relationship b/n the contacts of D and forum state and the cause of action being brought, the more likely that the forum state will have PJ over D. Remember the example of Czarnetsky tripping the little kid in the movie theater he visits once a month in Memphis. B/c the contacts are directly related to the alleged tort, the notion of specific jurisdiction says the contact is sufficient.
However, if Czarnetsky gets in a bar fight in Oxford that doesn’t mean he can be sued in TN just b/c he goes to the movies there once a month. Still, in cases where PJ is a little questionable, cts will probably go ahead and hold PJ.
Int’l Shoe different than Pennoyer b/c it dealt w/ a corporation, not an individual.
International Shoe Test: In order for a state to subject a nonresident Δ to in personam jurisdiction, due process requires that he have certain minimum contacts so that the suit does not offend the traditional notions of fair play and substantial justice
Minimum Contacts (How to CAP off minimum contacts):
a. D must have had Contacts w/ forum state
b. Action (suit) must Arise from such contacts
c. D must have “Purposefully availed” himself of the laws of the state:
§ “purposeful availment”- usually, if D directly did business in the state with the purpose of making money
§ If D has purposefully availed himself, he is said to have enjoyed protection of the laws of the state, and likewise is subject to the laws of doing business in the state.
Ø “Traditional notions of fair play and substantial justice”
·         VERY elastic standard
·         Things the court will weigh in deciding whether or not the maintenance of a suit violates the TNFPSJ:
a. The burden on D who will be tried in forum state
b. Interests of forum state
c. P’s interest in convenient and efficient remedy
d. Interstate judicial system’s interest
e. Interest of involved states in social policy
*Memorize these factors
PENNOYER TEST                                                            INTERNATIONAL SHOE TEST
General Jurisdiction (for PJ! Not SMJ!)- if a court has general jurisdiction over a A; a court can hear ANY claim brought against A.
Based on:
Systematic and continuous presence
Substantial activities
Specific Jurisdiction- a state court may still have in personam jurisdiction over A if it can be shown that A has “certain minimum contacts so that maintenance of a suit does not violate traditional notions of fair play and substantial justice”
C. Absorbing In Rem Jurisdiction
Harris v. Balk (pg. 84) (and NB)
H owes B $; B owes E $; H lived in NC but travels from NCàMD; E sues H asking for $ H
[1] I.e. if litigation is based on a different single “transaction” then claim preclusion doesn’t apply but we still want to save the court’s time and not relitigate issues that were taken care of in the suit about that first transaction.