Outline
Civil Procedure I
Novogrodsky – Fall 2014
[Received an A]
Unifying themes from Civ Pro.
I. Procedure as fairness- let your voice be heard by an independent decision maker. [Due Process Clause of the 14th amendment]
a. Procedure can both create and inhibit fairness
II. Self governed profession
a. Pay your own way, Rule 11 sanctions (give court police power)
i. Rules that govern legal professionals are created by legal professionals
III. Globalization- relationship between different legal systems, not all legal systems are the same, thinking strategically as to where to bring their claim (forum shopping)
IV. Efficiency- too few judges and too many cases, joinder of both parties and claims
♦Which proposition best explains the efficiency rationale of the FRCP? The “same transaction or occurrence” language in many of the rules works to consolidate cases flowing from similar problems before a singles court
State v Federal Court
I. State Courts
a. Courts of general jurisdiction
b. States highest court is the final word on what state law means/is
c. Use long arm statutes to obtain jurisdiction
d. Federal law questions can be appealed from the state’s highest court to the US Supreme Court
♦Federal courts are courts of limited jurisdiction. State courts are courts of general jurisdiction.
II. Federal Court
a. Courts of limited jurisdiction
b. Only federal court in the US constitution; the US supreme Court
c. Other courts created by Congress, pursuant to either Article I or Article II
Pre-Judgment Remedies
Due Process Clause of the 14th amendment- “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Due Process requirements as applied to Pre-Judgment seizures-
I. Pre-seizure hearing [Fuentes]
II. Judge or agent must issue writ (not a clerk) [Mitchell]
III. Bond posted [North Georgia, Doehr]
IV. Needs to be proven by fact [North Georgia]
V. Is pre-judgment seizure must be made under exigent circumstances? [Doher]
♦Mitchell v. Grant comes out differently than Fuentes v. Shevin because the Louisiana statute provides for specificity and an expeditious hearing and only judges can issue the writ.
Rules and shape of Litigation
1) Rule 8- General Rules of Pleading-
I. The complaint or claim must contain 3 parts rule 8(a):
a. “a pleading that states a claim for relief must contain:”
I. A short and plain statement of the grounds for the courts jurisdiction
II. A short and plain statement of the claim showing that the pleader is entitled to relief
a. A case will be dismissed if no set of facts exist that will allow claim to proceed [Swierkiewicz v Sorema] – A unanimous United States Supreme Court held that the district and appellate courts were incorrectly relying on precedent that concerned an evidentiary standard rather than a pleading requirement to survive a motion to dismiss. The prima facie standard is too high of a standard, and it conflicts with Rule 8(a)(2) which only r
service summons?
1. “Any person who is at least 18 years old and not a party may serve a summons and complaint.”
(a) over 18
(b) not a party in the suit
c. Rule 4(d) Waiver of formal service
1. A party can opt for service by mail or waive personal service- after they must be served within 60 days
d. Rule 4(e) Who can be served?
1. “Unless federal law provides otherwise, an individual – other than a minor, an incompetent person, or a person whose waiver has been filed – may be served in a judicial district of the United States by:”
(a) 4(e)(1)- service may be accomplished by any means authorized by the law of the state in which the district court is located or where service is made
(b) 4(e)(2) delivering a copy of the summons personally, leaving a copy with someone of suitable age (and who lives there) at the Δ‘s home, or delivering a copy to an agent
e. Rule 4(f) How to serve someone in a foreign country
1. Unless treaty or federal law provides otherwise
f. Rule 4(h)-corporations, partnerships, or associations
1. In manner consistent with (e) or delver to agent
g. Rule 4(m)- reasonable time 120 days
h. Rule 4(k)(1)(a)- serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant
1. (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.
