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Civil Procedure I
Wayne State University Law School
Mann, Lawrence C.

A ROAD MAP
1. Personal jurisdiction: make sure that the court has “personal jurisdiction” or “jurisdiction over the parties.” You must check to make sure that:
(1) D had minimum contacts with the forum state (state or federal court); and
(2) D received such notice and opportunity to be heard as to satisfy Amendment 14 [due process].
2. Venue: check whether venue was correct. [Federal court suits – what judicial district the case may be heard in]. The case must be heard either:
(1) In any district where the defendant resides [with special rules for multi-defendant cases]; or
(2) In any district where a substantial part of the events giving rise to the claim occurred. §1391.
3. Subject matter jurisdiction: Does the court have subject matter jurisdiction?
a. Diversity §1332: The case is between citizens of different states [“complete diversity” – no Π is a citizen of the same state as any Δ]; at least $75,000 is at stake; or
b. Federal question §1331: The case raises a “federal question” [Π’s right to recover stems from the U.S. Constitution, a federal treaty, or an act of Congress; no minimum amount required] 4. Pleading: Examine whether the pleadings are proper. Rules 7-11
5. Discovery: You may have a complex of issues relating to pre-trial discovery.
6. Multi-party and multi-claim litigation: If there is more than one claim in the case, or more than the basic two parties (one Π and one Δ), you must bring multiple parties and multiple claims into a case.
a. Counterclaim: D may make a claim against P, by use of the counterclaim. Rule 13. See if the counterclaim is “permissive” or “compulsory” [third parties, who are neither the original Π nor the original Δ, may make a counterclaim] b. Joinder of claims: Once a party has made a claim against some other party, she may then make any other claim she wishes against that party. This is “joinder of claims” Rule 18(a).
c. Joinder of parties: Multiple parties may join their actions together. See whether “permissive joinder” or “compulsory joinder” is applicable. Remember that each of these two types of joinder can apply to either multiple plaintiffs or multiple defendants. Rules 19 and 20.
d. Class actions: Check whether a class action is available as a device to handle the claims of many similarly-situated Πs, or claims against many similarly-situated Δs. Rule 23. [See if there are 25 or more similarly-situated Πs or Δs] e. Intervention: A person who is not initially part of a lawsuit may be able to enter the suit on his own initiative, under the doctrine of intervention. Rule 24. [See if intervention is “of right” or “permissive”] f. Interpleader: Where a party owes something to two or more other persons, but isn’t sure which, that party may want to use the device of interpleader to prevent being made to pay the same claim twice. After checking whether interpleader might be desirable, decide whether the stakeholder should use “statutory interpleader” or “Rule interpleader.” See 28 U.S.C. §1335 (statutory interpleader) and FRCP 22 (Rule interpleader).
g. Third-party practice (impleader): Anytime D has a potential claim against some third person who is not already in the lawsuit, by which that third person will be liable to D for some or all of P’s recovery against D; D should be able to “implead” the third person. [Ex: Employee, while working for Employer, hits Victim with a company car. Victim sues Employer in diversity, under the doctrine of respondeat superior. Under indemnity, Employer will be able to recover from Employee for any amount that Employer is forced to pay Victim. Therefore, Employer should “implead” Employee as a “third party Δ” to the Victim-Employer action] Rule 14(a). Once a third-party defendant is brought into the case, consider what other claims might now be available [a counterclaim by the third-party Δ against the third-party Π, a cross-claim against some other third-party Δ, a counterclaim against the original Π] h. Cross-claims: Has any party made, or should make, a claim against a co-party [cross-claim]. Rule 13(g).
i. Jurisdiction: For any multi-party or multi-claim devices, see if the requirements of personal jurisdiction and subject matter jurisdiction have been satisfied [does “supplemental” jurisdiction apply]. If no, the new claim/party will have to independently meet the requirements of federal subject matter jurisdiction. [Ex: P, from Massachusetts, sues D, from Connecticut, in diversity. X, from Massachusetts, wants to intervene in the case on the side of D. Because supplemental jurisdiction does not apply to intervention, X must independently satisfy the requirement of diversity, which he cannot do because he is a citizen of the same state as P. Therefore, X cannot intervene]  
 Overview – Where Can a Suit Be Brought?
·         Procedural due process/14th Amendment The court must have given the defendant adequate notice of the action against him, and an opportunity to be heard
 
1. Subject matter jurisdiction: refers to the court’s power to decide the kind of case before it. §1331 and §1332 [Ex: (1) Does the federal court in NJ have the power to decide cases in which the two parties are citizens of different states? (2) Does the Binghamton Municipal Court have the power to decide cases involving more than $1,000?] Hawkins v. Masters Farms, Inc P. 6
·         Facts: James Creal was killed when his car was struck by a tractor owned by Masters Farms, Δ. Creal’s estate, Π, brought suit against Δ in federal court alleging diversity subject matter jurisdiction. Δ moved to dismiss on grounds of incomplete diversity among the parties.
·         Rule: For purposes of determining diversity of jurisdiction, a person is a “citizen” of the state in which he is “domiciled” which for adults is established by physical presence in a place in connection w/ intent to remain
·         The party seeking to invoke federal jurisdiction bears the burden of proving that jurisdiction is proper. B/c federal courts are courts of limited jurisdiction, the presumption is against federal jurisdiction.
 
2. Personal Jurisdiction: refers to whether the court has jurisdiction to decide a case between the particular parties, or concerning the property, before it. [Ex: (1) Does Court X have jurisdiction over D, who is a citizen of State X, but who is temporarily out of the state? (2) Does Court Y have jurisdiction over property in State Y where the action is one by P to register title to the land in his name?] ·         Presence [w/in the forum state]: even if the individual is an out-of-state resident who comes into the forum state only briefly, personal jurisdiction over him may be gotten as long as service was made on him while he was in the forum state. [Ex: D and his wife, P, separate while residing in NJ. P moves to CA with their children. D visits CA on business, and stops briefly to visit the children. While D is visiting, P serves him with process in a CA suit for divorce. D never visits the state again] ·         Domicile [w/in the state]: If the person is temporarily absent from the state, a person is considered to be domiciled in the place where he has his current dwelling place, if he also has the intention to remain in that place for an indefinite period.
·         Residence: Jurisdiction can be exercised based on D’s residence in the forum state [ex: a person may have several residences simultaneously].
·         Consent: Jurisdiction can be exercised by consent; even there are no contacts with the forum state. [Ex: P, who does not reside in Ohio or have any other contacts with Ohio, brings suit against D in Ohio. By filing the suit in Ohio, P will be deemed to have consented to Ohio’s jurisdiction. D may then counterclaim against P. Even if P dismisses his own suit, his consent to the action will be binding, and the Ohio courts will have personal jurisdiction over him on the counterclaim].
·         Non-resident motorist: Courts have jurisdiction over non-resident motorists who have been involved in accidents in the state.
·         In-state tortuousness: Courts havejurisdiction over persons committing tortuous acts within the state [ex: D, an out-of-stater, gets into a fight with P at a bar in P’s home state. P wants to bring a civil battery claim against D in the state. If, as is likely, the state has a long-arm provision governing tortuous acts within the state, P will be able to get personal jurisdiction over D in the battery action].
·         Conducting business: Courts have jurisdiction over non-residents who conduct businesseswithin the state.
·         Domestic relations cases: Courts try to take personal jurisdiction over a non-resident party to a domestic relations case.
 
·          In personam – [jurisdiction over the defendant’s “person”] gives the court power to issue a judgment against her personally. Thus all of the person’s assets may be seized to satisfy the judgment, and the judgment can be sued upon in other states as well.
·          In rem – [jurisdiction over a thing] gives the court power to adjudicate a claim made about a piece of property or about a status. [Ex: action to quiet title to real estate; action to pronounce a marriage dissolved] ·          Quasi in rem – the action is begun by seizing property owned by, or a debt owed to the Δ, within the forum state. The thing seized is a pretext for the court to decide the case without having jurisdiction over the defendant’s person. Any judgment affects only the property seized, and the judgment cannot be sued upon in any other court.
·          Minimum contacts requirement: D has to have taken actions that were purposefully directed towards the forum state. [Ex: D sold goods in the state, or incorporated in the state, or visited the state, or bought property in the state] W/o minimum contacts, exercise of jurisdiction would violate D’s 14th Amendment.
·          “Long-arm statutes” – permits the court of a state to obtain jurisdiction over persons not physically present within the state at the time of service. [Ex: A long-arm might allow jurisdiction over an out-of-stater who has committed a tort in the state]  
3. Venue: refers to the “place of trial” [Federal court suits – what judicial district the case may be heard in]. The case must be heard either:
(1) In any district where the defendant resides [with special rules for multi-defendant cases] (2) In any district where a substantial part of the events giving rise to the claim occurred §1391
(3) In any district where Δ consents to be tried
 
§ 1391. Venue generally
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
 
PROVISIONAL REMEDIES
Preliminary Injunctions and TRO: The Basic Problem (Rule 65)
·         TRO – an order from the court to do something or refrain from doing something
·         The decision about the preliminary injunction will often end the case
·         When to grant one?
o        Probable success on the merits; possibility of irreparable injury; balance of hardships; and public interest
o        Balance of merits and irreparable harm favors movant
William Inglis & Sons Baking Co. V. ITT Continental Baking Co. P.313
·         Facts: Inglis, Π, brought suit for a preliminary injunction against ITT, Δ, for violations of antitrust provisions, and the district court denied the injunction on the ground of the lack of probability that Π would succeed on the merits
·         Rule: A preliminary injunction should be granted if the moving party demonstrates either a combination of probable success and the possibility of irreparable harm, or that serious questions are raised and the balance of hardship tips sharply in his favor
·         Problems with temporary relief [The court need not consider every harm resulting from an erroneous preliminary decision, but only harm that final relief can’t address]:
o        Information incomplete – necessary to take some time to get all the facts
o        Justice delayed is justice denied [party against whom an injunct

depends).
o        8(c):a party can set forth certain matters constituting an affirmative defense [when a party mistakenly states a counterclaim as a defense of vice versa, the court shall treat the pleading as if there had been proper designation] o        8(d): avertments stated in the pleading are admitted when not denied in the answer
o        8(e): avertments of pleadings shall be simple, concise, and direct (no technical forms are required); a party can set forth two or more statements on a claim or defense[pleading in the alternative] §         Def à pleading in the alternative: The pleader, whether Π or Δ, may plead “in the alternative.” “A party may set forth two or more statements of a claim or defense alternately or hypothetically.” [Ex: In count 1, P claims that work done for D was done under a valid written contract. In count 2, P claims that if the contract was not valid, P rendered value to D and can recover in quantum meruit for the value. Such alternative pleading is allowed] §         [You are allowed to deny and admit some or all allegations as he wishes] §         [Will have to settle on a single version of the story before the case comes to trial à judge and jury look down on inconsistent stories][P. 354] o        8(f): all pleadings shall be so construed as to do substantial justice
·         Case:
Bell v Novick P. 15
·         Facts: Bell, Π, filed a tort complaint in federal court after removal which stated only that Novick’s, Δ, agent drove a truck which negligently collided w/ the car in which Bell, Π, was riding, causing injury to Bell.
·         Rule: A complaint which alleges only that Δ negligently drove a motor vehicle and thereby injured Π is sufficient under Rule 8. Rule 8 requires only a short & plain statement of claim showing that pleader is entitled to relief.
 
The Functions of Pleading
·         Dilatory motionsà responses that delay suit; waived if made too late; take no position on the case
o        Jurisdictionà “Not here” [challenging the jurisdiction] o        Suspensionà “Not now” [challenging Π’s right to bring the action until a problem was resolved] o        Abatementà “Not until this defect has been fixed” [challenging various other procedural defects in the complaint – ex: incorrect spelling of Δ’s name, pendency of another action on the same claim between the same parties] ·         Peremptory motionsà jury pleas; grapple w/ the merits of the claim
o        Demurrerà “So what?” [conceded the truth of opponent’s factual allegations but challenged their legal sufficiency] o        Traverseà “Not true” [conceded the legal sufficiency of the plea but denied its factual allegations; jury decided if it was true or not] o        Confession and avoidanceà “Yes but” [conceded the legal sufficiency and the factual truth of the preceding plea, but alleged additional facts that changed their significance – ex: if Π pleaded trespass to land, Δ might plead that Π granted him an easement on the land] ·         Some of the old dilatory and peremptory pleas [responses to allegation] have survived [see Rule 8(b), 8(c), 12(b)] ·         Modern pleadings and motion practice fulfills three functions:
o        Quickly eliminates cases that suffer from significant procedural defects [Rule 12(b)(1), (3), (4), (5), and (7)] o        Shapes the discovery process that will be the central feature of many cases
o        Eliminate a claim entirely [Rule 12(b)(6) no factual allegations required] ·         A court will almost never dismiss a complaint w/o granting Π leave to amend [if it is possible to truthfully and professionally amend the complaint in such a way that it will withstand a second motion to dismiss] ·         Rule 12 – allows for successive motions to dismiss for failure to state a claim [this defense will not involve a credibility contest – you can invoke this defense even if your client has a shady background] ·         Rule 12(b)(6) – “even if everything you allege is true, the law affords you no relief”; attacks the legal sufficiency of a complaint; the “court must assume that all of the factual allegations of the complaint are true”
Haddle v Garrison – Part 1
§         Facts: Haddle, Π, sued his employer for allegedly conspiring to fire him to deter from testifying at a federal criminal trial. Δ responded saying, “so what?”; he was an at-will employee and incurred no injuries
§         Rule: A Civil Rights Act §1985(2) claim requires that Π suffer actual injury and discharge from at-will employment does not constitute actual injury àΠ did not state a legal claim in his complaint; Δ used 12(b)(6)
Haddle v Garrison – Part 2
§         Rule: The fact that employment at will is not property, does not mean that the loss of this employment does not cause injury [Π stated a proper claim in his compliant; shouldn’t have been reversed under 12(b)(6)] ·         Rule 12(c) motion cross-ref w/ Rule 56 [the pleading is being attacked on factual sufficiency and contradicts what the previous complaint said]