Civ Pro Outline
Procedural Systems
I) Adversarial model (United States)
A) History – court of equity and court of common law. The FRCP abolished the law & equity ways of old and merged them into a single system.
B) Distinguishing feature – Strong loyalty the lawyer owes to the client (will have incentive to use the rules to achieve private victory rather than public justice).
C) System Design – Fast, cheap, and accurate
D) Dual court systems
1) District crts – state level, trial court
2) Circuit crts – appellate – can review decisions of district crts
3) US Supreme Court (court of last resort, can grant writ of certiorari
II) Inquisitorial Model (Europe)
Jurisdiction
I) Personal Jurisdiction (whether the court has power over an individual)
A) Based on if there is a connection btwn that state & the party. Own choice as to physically where you want the case to go.
II) Subject Matter Jurisdiction (has specific places it can be heard)
A) State Crts have general subject matter jurisdiction (can hear all kinds of disputes)
B) Federal Crts have limited subject matter jurisdiction. Can hear 2 types of cases:
1) Cases involving federal law (federal question jurisdiction)
2) Cases in which parties are citizens of different states and amount is over $75,000 (diversity jurisdiction)
III) Subject Matter jurisdiction is absolute and cannot be waived. Personal & venue – can be waived (in P.A.M. and such).
Pleadings
– What is a pleading and what is the function? Position statement & a statement that the parties think the ultimate resolution is.
– Rule 7 (motion – which is a request for immediate relief here & now such as motion to dismiss the complaint, etc) does not limit the types of motion – a motion is just the vehicle you use to ask for something.
I) General Rules of Pleading (P’s opening moves)
A) Rule 8 Claim for Relief (complaint)
8(a)(1) – statement of subject matter jurisdiction (federal question or diversity).
8(a)(2) – short & plain statement of the claim showing that the pleader is entitled to relief.
8(a)(3) – a demand for the relief sought (not limited to what you ask for now).
– Iqbal (heightened the pleading standard)
· Kennedy 2-step:
o Disregard conclusory/naked/recitation of the law (naked statement of the law: he contacted me, it was offensive, etc).
o Take what’s left, assume true, and ask if it states a plausible claim.
– Twombly (before Iqbal)
· Souter says conclusory allegations are not enough (can’t draw inferences from parallel behavior). Pleading in anti-trust cases – inferences don’t have to be accepted as true. Look for “plausible inferences” that can be drawn from the facts.
– Pre-Iqbal: sense that notice pleading could be satisfied w/out any facts.
– Post-Iqbal: Need not plead all the facts – but somewhere in the middle.
8(e) – Construing pleadings….
B) Matters with particular pleading
Rule 9(b) – Fraud or Mistake; Conditions of Mind
· In alleging fraud or mistake, a party must state w/ particularity the circumstances constituting fraud or mistake (satisfy this by including who, what, why, when, and where). Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
Rule 9(g) – Special Damages
· If an item of special damage (definition: unexpected) is claimed, it must be specifically stated.
II) Rule 4 – Service of Process (Summons)
4(c) – Service
4(c)(1) – What is served? Complaint and summons together.
o Summons is the crts way of asserting power over defendant.
4(c)(2) – By Whom? Anyone over 18 & not party to the case.
4(c)(3) – US Marshal or person specially appointed by court can serve @ P’s request.
4(d) – Waiving Service
· Option to bypass process server & send by mail w/ waiver form. If signed & returned – get more time to answer. Failure to waive w/out good cause results in expense of summons and less time to answer complaint.
4(e) – Serving an Individual in US
4(e)(1) “State ways”
o State may authorize service by fax, email, certified mail, posting, UPS, and generally by publication (if address is unknown), sometimes, even nail on door. DOES NOT APPLY TO FED WAYS.
4(e)(2) “Federal Ways”
4(e)(2)(A) – Personal delivery
4(e)(2)(B) – Dwelling/abode (suitable age & discretion, & who resides there)
4(e)(2)(C) – Authorized agent (lawyer – only if authorized). Company’s sometimes have to authorize someo
nt on public record) b/f response to pleading or w/in 20 days of service if response not allowed.
12(g) – Only one pre answer motion allowed – join all motions together. Only exception is if 12(e) is filed
B) Rule 8 – Answer
– In situations where there is no Rule 12 motions to raise, D chooses not to, or the court does not grant motion; the def must answer the complaint.
– Answer: 1) short & plain terms of defenses to each claim asserted against AND 2) admit or deny allegations (or answer claims). Philosophy for answers should be like philosophy for pleadings.
– w/in 20 days of being served complaint or 60 days after waiving service.
8(b)(3) – general denials – must be absolutely sure nothing is true.
8(b)(5) – 3 options: admit (establishes allegation), deny, or I don’t know (treated as denial).8(b) general
o Should deny specifics (wrong day, wrong weapon). Break it down by element as per allegation (if comes back up later that this was not done, could be sanctioned).
o Don’t answer “neither admit nor deny allegations – fed crts don’t allow this.
o Lacking knowledge same effect as denial.
o Failure to respond is admitting.
o Refuse to answer on basis against self-incrimination – same effect as denial.
8(d) – Pleading to be concise & direct. Can answer in the alternative (I didn’t do it, but if I did I didn’t mean to).
1) 8(c) – Affirmative Defenses
o Not contesting merits but for some other reason you’re not liable.
o Means “yes, but…”
o Not in play until you plead it. Court may grant leave to amend unless it would cause prejudice (lost opportunity rather than the actual outcome – if D had pleaded it from beginning, what would P have done differently? If nothing, no prejudice).
Ex: Fraud, statute of limitations, assumption of risk, contributory
