Civil Procedure II
Professor Farish Percy
Fall 2006
Principles of Federal Rules
a) To establish a union of law and equity, same procedure for all cases
b) Jury retained in actions formerly “at law”
c) Simplicity and liberal amendment and pleadings and motion practices (basically anyone can draft a complaint and state a claim)
d) Liberal provision for joinder of claims and parties (want to be efficient, cost effective, and fair
e) Comprehensive discovery procedures (all discovery disputes are resolved at trial judges discretion)
f) Reliance on discretion of trial judge
g) Simple provisions for appeal
Anatomy of the Lawsuit
A. Pre-complaint (how do you get a client? Referrals, advertisement, etc.)
Interview the client and decide what happened, what type of case do you have? Get facts from client. Do research. Do a conflicts check. Determine the statute of limitations. Decide the fee arrangement.
i. Determining whether claim exists
Legal research, Rule 11
ii. Determining Whether to Proceed
iii. Settlement Negotiations
iv. Deciding Where to File
Want to think about who the jury will be, do feel more comfortable in federal court or state court, look at who the judge will be, the rules in federal court vs. the rules of state court (most of the time they are the same, but might be some difference such as class action cannot be brought in federal court). Some might say that the federal rules of joinder are more liberal in federal court. Might be different evidentiary rules. Look at appeal if think you’re going to have one and look at appeal times.
B. Complaint
C. Responding to the Complaint
D. Defining the Scope of Litigation
E. Discovery
F. Pretrial Settlement/ Mediation Conferences
G. Summary Judgment and Daubert Motions
H. Final Pretrial conference/ Order
I. Trial/Judgment
J. Post-Judgment Motions
K. Appeal
Rule 1 – the scope and purpose of rules
1) Federal rules apply to all civil actions in district courts
2) Federal courts and attorneys are required to construe and administer the rules in a manner that achieves the:
a) just,
b) speedy
i) *There is tension between the rules of “just” and “speedy”
c) Inexpensive determination of each civil action
3) Unless
atute of limitation questions
3) P must serve complaint and summons within 120 days of commencement
4) Date of commencement is significant in regard to:
a) Subject Matter jurisdiction
b) Personal Jurisdiction
c) Statute of limitations, etc.
5) If jurisdiction is based on diversity, then must look at state law to see if filing will toll the statute (MS does toll on date of filing)
a) Generally filing tolls SOL in federal question cases
6) If original papers are mailed to the clerk’s office for filing, then the mailbox rule does not apply; the lawsuit only commences upon clerk’s receipt of the complaint
Rule 4 – Summons
a. Summons must be:
i. Signed by the clerk
ii. Bear the seal of the court
b.
c. Serve summons with complaint
i. Within 120 days of filing complaint
ii. May be served by any person who is not a person and is over 18 y.o.
Waiver of service
