Civil Procedure Outline
1. Is there Subject matter jurisdiction?
2. Is there Personal jurisdiction? (Specific, General, Consent, or in-hand/in-state SOP-tagging)
3. Has the defendant been given Notice and an opportunity to be heard?
4. Has the defendant been served with process properly?
5. Does the court have venue?
6. If action is in state court, can it be Removed to a federal court?
7. Have any of the proceeding 6 issues been waived?
A. Subject Matter Jurisdiction: denotes whether a court can hear a particular
type of dispute. SMJ is based on the nature of the claim, and the citizenship of parties.
1. General- has SMJ over all claims, except those that are taken away from them. There are state courts in every state that have general jurisdiction.
2. Limited – must be specifically authorized by statutes. Fed. Courts limited due to:
Article III, § 2 of Const. Congress decides federal SMJ
Most important statutes authorized are 28 U.S.S. § 1331 and 1332. Looks at nature of the claim and citizenship of parties to the suit.
3. Concurrent- when jurisdiction overlaps b/t 2 courts.
-All states have at least one trial court of general SMJ
Diversity Jurisdiction- U.S.C. §1332- Civil actions b/t citizens of a different state AND where matter exceeds $75,000, may be heard in federal court. Used to take away possible bias or favoritism of state courts. Can be:
a. Citizens of different states
b. Citizens of a sate and citizen of a foreign nation
c. Citizens of different states when one is an alien
d. A foreign nation as the Plaintiff and a U.S. citizen.
B. Personal Jurisdiction- the state or federal court in that state must have the power to render a judgment against a particular defendant. The power of a court over a particular defendant. Citizenship is determined by domicile: a person’s residence, and their intent to remain there indefinitely.
Venue- the actual geographical location of trial. -venue is the ‘place of trial’, and is used to allocate business b/w courts that have both subject matter and personal jurisdiction. Usually where party resides, where claim arose, or where defendant is doing business.
-Purely statuory; not something Congress had to pass under Constitution.
– For fe
f service of process/process, (5) failure to state a claim upon which relief can be granted.
· Answer- A response to the allegations of the complaint. Must be filed if the motion to dismiss is denied. Issues raised in the Answer:
· Admit or deny truth of allegations- if not answered, deemed admitted
· Affirmative Defenses- statute of limitations, lacks jurisdiction
· Counterclaims- claim for relief asserted against opposing party
a. Compulsory- a counter-claim that arises out of the same transaction. It must be brought now or never.
b. Permissive- ANY counter-claim. (yet, court must have jurisdiction for the claim)
· Cross-claims- against a co-defendant
· Impleader- 3rd party claims- against party not in action arising from the same transaction. Rule 14- 3rd party may be liable for some or all of what D is liable to P for (but no more).
If D does not motion to dismiss OR answer, then default judgment is rendered against the D.