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Civil Procedure I
University of the District of Columbia School of Law
Allen, Edward L.

FALL 2012
1.  CB  1-12; skim
U.S. Const. Art II
28 U.S.C. 1331
28 U.S.C. 1331 1332
CB 12-25
Personal Jurisdiction
·         PJ– court cannot exercise power over D unless state in which court sits has some connection with D or the accident that gave rise to P’s complaint
·         venue
Subject Matter Jurisdiction
·         jurisdiction cannot be waived or created  by consent of the parties.
·         Federal Courts –
§   Limited Jurisdiction –  federal claims, diversit, $75,000
§   Original Jurisdiction – any case that can be originally brought in federal court
§   Concurrent Jurisdiction – Unless congress passes a statute of exclusive jurisdiction for fed. cts, the default is that state cts. may hear federal law claims.  The power of a State’s Court of General Jurisdiction is concurrent with that of its specialty cts. of “limited jurisdiction.”
§   diversity jurisdiction (because state courts  an also hear diversity case)
§   Exclusive Jurisdiction – Bankruptcy cases
·         General Jurisdiction – hear any case unless legal authority says they cannot hear particular claim
·         Limited Jurisdiction
·         Ex. Probate matters (wills) excluded from general jurisdiction courts
·         Outer bounds set by Article  I, Sec. 2 of US Constitution
·         Congress decides precise subject matter with statutes
·         State Court – Constitutional, federal or diversity cases
·         Federal Court – Constitutional cases, but no civil cases unless over 75k or interstate
·         28 U.S.C. § 1332– authorizes the courts to hear diversity claims when 1) all parties at the commencement of the suit are citizens of different states and 2) the amount in controversy exceeds $75,000.
·         Subject Matter Jurisdiction
·         U.S. Constitution Article  III, Sec. 2 – state courts of general jurisdiction may hear cases between interstate conflicts passed before federal court
·         Federal Question Jurisdiction –
·         28 U.S.C. §1331 – Statute granting district court concurrent za jurisdiction over federal question cases that arise because of the nature of the claim – arising under the Constitution, laws or treaties
·         28 U.S.C. §1338 – federal courts have exclusive jurisdiction over bankruptcy and copyright claims and concurrent jurisdiction over trademark claims
§   Diversity Jurisdiction
§   Supplemental Jurisdiction
§   Removal
§   US Constitution sets only the outer bounds of Diversity Jurisdiction. Under Article 3 of the Constitution enables jurisdiction, but congress has the authority over states that congress has power to state. Under 1331 and 1332, Congress limits the courts jurisdictions.
§   P(MD) sues D(DC) for 75k in DC superior court (general jurisdiction) for violation of disabilities act. D moves to dismiss for lack of subject matter jurisdiction. DENIED. Just because federal question can be heard in federal court doesn’t mean that it can’t be heard in state court of general jurisdiction. 1331 does not apply to a state court.
·         Venue
§   Declining jurisdiction – transfer
Incentives to Litigate
§   Lawyer-worthy –
§   dispositive decisions;; lawyer worthy; lien, garnishment; attachment; economic damages; non-economic damages; trial bifurcation; individualization of damages; statutory attorney’s fees; indicium; reprehensibility
·         Substitutionary Remedies – replacement for the harm D has caused
§  mostly money damages,
·         Economic Damages – money lost as result of tort, money expended in law suit
·         Compensatory Damages- Seeks to put P in their Rightful Position
§  Purpose: restore injured party to position he would have been in had it not been for the wrong act of the other party; generally use market value
·         Statutory Damages – damages set out by legislature by law
§  Fraud is more lawyer-worthy than breach of contract due to expectation Damages
·         Punitive Damages – purpose of punishment and deterrence
§  Available in cases with intentional torts, egregious torts, gross negligence
§  Hard and Fast Rule – 9-to-1 ratio; single digit rule  for Punitive damages vs. Fraud Fine (State Farm)
·         Disparity between compensatory (actual/potential harm) vs. Punitive damages should only be in the single digits (0-9)
§  Substantive rule of Punitive Damages:
·         Degree of reprehensibility of D’s conduct
·         Disparity between actual harm and punitive damage award.
·         Difference between punitive and applicable civil penalties.
§  Procedural rule: Court of appeals needs to conduct de novo review
§  Three Factors for Punitive Damages:
(1)    Physical
(2)    Reprehensibility of П’s Conduct
·         Reckless in regards to health or safety of others
(3)    Repeated Conduct
·         Deceit or Fraud
o    Intentional Malice
o    Constitutional Issue – depravation of property without due process
·         Equitable Relief
o    only available in the absence of an adequate remedy at law.
o    Most common form of equitable relief = injunctions
o    Prohibitive- prevents someone from acting.
o    Mandatory- forces someone to act.
o    Failure to comply subjects individual to fines or imprisonment under
o    Equity – whatever the court chancery  did
o    Primary Areas of Law: Insurance and Patent Litigation
·         Specific Remedies – Looks to avoid the exchange, prevent the harm, repair the harm in kind or give Π exactly what was bargained for.
o    Types if Specific Remedies:
§  Decree of specific performance
§  Ejection – off property
§  Replevin – return of an item to its

e in discovery
·         Rule 12(f) Motion to Strike (within 21 days)
§  move to strike certain parts of the claim
§  Amending a document- public record may cause unofficial bias from jury, media
§  Ex. adding punitive damages, moving punitive damages requested
§  Mini-motion for Summary judgment or Mini-motion for Failure to State a Claim
·         Rule 12(c) Motion –
§  Ex. Breach of Contract for nonpayment due to “hard times” “hardship”  is not a legal defense to breach of contracts. You lose if you use this defense in an answer.
·         Rule 12(b)(6) Motion for Failure to state a claim (FSC)
§   Tests the legal sufficiency of the complaint:
§  First Prong – factual allegations cannot be conclusory, must be particularized
§  Second Prong – factual allegations are plausible, not just conceivable
§  D can contend that even if everything that P alleges in his complaint is true it does not state a claim for which relief can be granted.
§  Futile Amendment – Not an important amendment 12(b)(6)
§  How to Get a 12(b)(6) Motion other than as a Matter of Law
§  When Facts Presented do not amount to a claim
§  When lawyer does not plead necessary elements of an action
§   Consecutive claims are allowed under Rule 12(g)
§   Rule 12(h)(1) waives omitted defenses of Personal Jurisdiction (PJ), venue, service of process = must be brought with original motion
·         Ex. If Court denied motion for Failure to State a Claim, cannot now move for Personal Jurisdiction (PJ)
§   Exceptions – 12(b)(6) Failure to State a Claim can brought up to original trial
·         Rule 12(b)7) Lack of Subject Matter Jurisdiction can be brought up to trial
·         Subject Matter Jurisdiction Rule 12(h)(3) can be brought up to trial
§   Answer
§   12(a)(4)(B) Motion for a more definite statement
§   General Denial
§   Rule 8(b) “neither admit nor deny the allegations -but demand strict proof thereof.” 
·         Lack of knowledge
§   Affirmative Defenses: Rule 8(c) – nonexhaustive list that must be pleaded in response
§   8(d): Failure to deny constitutes admission
§   Rule 11 Sanctions
·         Central purpose is to deter baseless filings in district court and thus, streamline the administration and procedure of the federal courts.