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Civil Procedure I
Wayne State University Law School
Fox, Gregory H.

Civil Procedure A Outline – Fox 2016
 
How a Case Gets to Federal Court
Federal Courts can hear cases relating to a question of federal law or suits involving parties with diversity of citizenship.
 
Areas of Exclusive Federal Jurisdiction
suits between states
cases involving diplomats
federal crimes
 
patent, copyright and trademark cases
 
Securities and banking regulations
 
When can a federal issue arise?
A suit can only raise a federal question when the plaintiff’s statement of his cause of action shows that it is based on those laws or the constitution. This rule was established in the Mottley case of 1908. The anticipation of an affirmative defense based on federal law does not satisfy this requirement. This rule is referred to as the ‘well-pleaded complaint rule.’ This rule prevents cases being heard in federal court where there ends up being no federal question raised, and therefore no federal jurisdiction. In the intervening years scotus has relaxed the Mottley rule given the fact that federal and state law have become increasingly intertwined.
 
USC 28 Sec. 1331 Federal Question
The federal district court shall have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States. In terms of subject matter jurisdiction all federal courts have the same jurisdiction, it doesn’t matter where they are. Article 3 sec. 2 gives federal courts subject matter jurisdiction, but says they ‘may’ take such cases, not that they must.
 
USC 28 Sec. 1332 Diversity of Citizenship; Amount in Controversy; Costs
Federal district court will have original jurisdiction in all civil actions where the amount in controversy exceeds $75,000 exclusive of interests and costs and is between:
Citizens of different states
Citizens of a state and citizens or subjects of a foreign state, except when the foreign national is domiciled in the same state.
Citizens of different states and in which foreign nationals are additional parties
A foreign state as plaintiff and citizens of a state, or different states.
B. If the plaintiff who brought the federal suit recovers less than the required $75,000 the court may deny costs to the plaintiff and in addition may impose costs on the plaintiff.
 
Concurrent Jurisdiction
Unlike federal courts, state courts are courts of general jurisdiction, they can hear any kind of case. This means that in most cases there is concurrent jurisdiction, this means they could be brought in either state or federal court. This means that if a case is dismissed from federal court due to lack of jurisdiction, the plaintiff can almost always bring the suit in state court.
 
Course of Litigation in Federal Court
 
Commencement of the Action
Rule 3 states that a civil action is commenced by Filing a complaint with the court. Filing a complaint before the statute of limitations has run will satisfy the statute in federal question cases and diversity cases where the state rule is similar, however some states require process to be served to satisfy the statute.
 
Service of Process
Who May Serve
Rule 4 authorizes any person who is at least 18 years old and not a party to the actions to serve the summons and complaint (process). A party may request that the service be made by a US marshal or another person appointed by the court.
 
2. How Service Is Made
An individual may be served by (a) personal service, (b) service left at the D’s usual place of abode with one of the suitable age and discretion, or (c) service upon an authorized agent of the D (see Rule 4(h)).  A corporation, partnership, or association may be served by serving an officer, a managing or general agent, or an authorized agent of the corporation. Alternatively, service may be made under state rules or by mail under the waiver of service provision. Service ordinarily must be made within 90 days of the complaint being filed; however, the court must extend this period for good cause shown. Rule 4.
           
Waiver of Service (Service by Mail)
The plaintiff may also request the defendant to waive service of process. To request a waiver of service, the plaintiff must mail the defendant certain items, the most important of which are a formal request to waive service (that also informs the defendant of the consequences of failing to waive service), two copies of the waiver form, and a copy of the complaint. The defendant generally has 30 days (60 days if outside the United States) from the date that the request was sent to return the waiver
Effect of Waiver
A D who waives formal service has 60 days (90 if outside US) from the date the request was sent to answer the complaint. The waiver of service does not waive the D’s right to object to venue or jurisdiction.
2.   Effect of Failure to Waive
If the D does not waive service, the P must serve him in one of the above ways. A D located in the US will be liable for the cost of service unless he does not have a good reason for failing to waive.
 
Serving a Party in a Foreign Country – Rule 4(f)
Unless contradicted by federal law, a court will acquire personal juri

parties –
 
Complaint – Rule 8(a)
Each claim for relief should contain:
A short statement of the grounds for the court’s jurisdiction
A short statement of the claim showing that the pleader is entitled to relief; and
A demand for judgement in relief, which may include alternatives
 
Complaints post Iqbal
Since the Supreme Court’s decision in the Iqbal case, the required standard for pleadings in federal court have been raised. A complaint now must contain sufficient factual basis to make the complaint’s allegations plausible rather than merely possible or conceivable. This interpretation of the meaning of Rule 8 replaced the more permissive standard developed in Twombly.
 
Pre-Answer Motions
 
Rule 12(b)(6)
Prior to filing an answer the D may raise a defense against the complaint by alleging any of the following deficiencies in the complaint:
Lack of subject matter jurisdiction – may be raised at any time
Lack of personal jurisdiction – must be raised at time of answer
Improper venue – must be raised at time of answer
Insufficient service of process -must be raised at time of answer
Failure to state a claim upon which relief can be granted (even if all P’s claims are true they can get no relief as a matter of law) – must be raised before end of trial
Failure to join a party need for a just adjudication (includes necessary and indispensable parties. – must be raised before end of trial.
 
b. Motion for a More Definite statement
Under Rule 12(e) a party may move for a more definite statement before responding to a pleading that is so vague that a responsive pleading cannot be made. The opposing party has 14 days after notice of an order unless the court sets a specific time. If not obeyed the court may strike the pleading.
 
c.  Motion to Strike
Under Rule 12(f) a party may move for the court to strike any insufficient defenses or redundant, immaterial, impertinent, or scandalous material. These motions are disfavored, and while generally using the same test as a 12(b)(6) motion, are rarely granted.