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

Civil Procedure A Final Outline
I. Commencing a Lawsuit
A.) The Role of Lawyers in Civil Litigation [1-17, RS xiii –xiv, 405 – 407] a.       General Overview
A.) Procedural law, less focus on substantive law
B.)   Procedure/ Stages
1.      Determining where to sue
2.      Pleading the Case
3.      Joinders
4.      Discovery
5.      Resolution before trial/ Settling
6.      Trial
7.      Post-trial/ appeal
b.      Determining Where to Sue
A.) Subject Matter Jurisdiction (SMJ):
1.      Definition: Courts power to hear a particular dispute
a.       State Courts: Have residual jurisdiction; at least one court in every state that has SMJ over every claim not otherwise delegated to another court
b.      Federal Court: Have limited jurisdiction; defined by constitution and federal statutes
                                                                                                                                                  i.      Federal Question: 28 USC 1331
1.      Exclusive Jurisdiction: 1331 is SMJ is shared with states
2.      Claims Arising Under: 1331 gives federal courts jurisdiction over claims of federal statutes and US Constitution and Treaties
                                                                                                                                                ii.      Diversity: 28 USC 1332: grants SMJ
1.      Between citizens of different states/ foreign citizens
a.       Definition: 1332: “citizen” = citizen of US who domiciled within a particular state
                                                                                                                                                                                                                          i.      EX: P from Fl v D from MI, D from MI
                                                                                                                                                                                                                        ii.      Not: P from FL v D from MI, D from FL
b.      Domicile: Determined by residence plus intent to remain; individual only has one domicile
                                                                                                                                                                                                                          i.      EX: Voter and motor registration, place of employment, bank accounts
                                                                                                                                                                                                                        ii.      Businesses: Where business is done, (exception: insurance companies)
                                                                                                                                                                                                                      iii.      Foreign Aliens: Where they reside
2.      Amount in controversy greater than 75K – Sec 1332
a.       P may often aggregate claim to meet 75K
3.      Notes:
a.       Not exclusive; same action can be filed in state court
b.      Exceptions: Domestic relations, probate cases, abstention, etc
4.      Skirting: Sec 1359: Attempts to create diversity by collusive (secretly illegal) means
c.       Supplemental Jurisdiction: 28 USC 1367 allows court to hear claim it could otherwise not hear if claim is brought along with related claims that court has SMJ over: 2 Step Process
                                                                                                                                                  i.      Sufficiently related to another claim (a): Do claims arise from a common nucleus of operative facts, same transaction test
                                                                                                                                                ii.      Prevents jurisdiction of claims by P against parties joined under certain rules (b), gives courts discretion to refuse under certain criteria (c)
                                                                                                                                              iii.      Exception: Court has discretion if there is federal and state to dismiss claims; 1367(c)
1.      If novel or complex issue of state law
2.      If state claim substantially dominates over federal law
3.      Court has dismissed all clams over all fed claims that it had jurisdiction over
4.      All other compelling reasons
2.      Hawkins v Master Farms, Inc [6] – 12(b)(1) Motion to Dismiss Standard
B.)   Personal Jurisdiction:
1.      Definition: Court’s power to enter judgment that binds parties to the case
2.      Constitutional Test: Analysis for when a court may exercise jurisdiction over a non-present defendant
3.      2 Categories
a.       In Personam: Jurisdiction over the person
b.      In Rem: Jurisdiction over property
4.      Notes
a.       If P can obtain personal jurisdiction over D is state court, in given state, he can also obtain it in federal court in a given state
b.      Courts assert jurisdiction over persons who are residents of a state but serve outside of borders
                                                                                                                                                  i.      Non-resident Motorist Statute: Drive in state = personal jurisdiction in state
C.)   Venue:
1.      Definition: Location for litigation; has personal and subject matter jurisdiction over P and D
2.      Federal Venue: Defined by 28 USC Sec. 1391
a.       Is defined in terms of judicial districts rather than states; many states have more than 1
D.) Service of Process: Draft the Complaint
1.      Waiver of Service: Mailing D complaint and Forms 1A & 1B
a.       D mails back signed copy of 1B, suit can proceed
b.      D refuses: P must draft summon, take to clerk of court to sign and seal
c.       Pleading the Case
A.) Lawyer’s Responsibility
1.      Bridges v Diesel Service, Inc [13]: Failure to Exhaust Administrative Remedies – Rule 11
B.)   Complaint
1.      Bell v Novick Transfer Co [15]:Motion to Dismiss the Declaration – 28 USC 1441, 1446
B.)   Complaint (Pleading) [329-354, FRCP 1-3, 7 & 8] a.       Definition: Describes underlying event and sets out claim(s) for which P seeks relief
b.      Historical Development of Pleading – Common Law: Gages (bonds) and safe pledges (promise D will appear)
A.) Had to convince royal officials that case warranted royal justice
B.)   Had to pay for it, administrating justice

must sign himself
3.      Required Information: Signer must also provide number and address
4.      Failure to Sign: If presented to court unsigned, it is stricken/ reprehended
B.)   Representation Made to Court: Whenever a party presents a matter to court, he is deemed to have certified things concerning that matter; inaccurate certifications = sanctions
1.      Acts Constituting Certification: State court = Rule 11 applies only when signed paper is submitted; Federal court = Deemed certifications are not limited to signed papers, includes any pleading, motion, or other paper presented to the court; existence of some paper is required. “Presented” =
a.      Signing the paper
b.      Signing or otherwise submitting the paper, regardless of signature
c.       Advocating the contents of the paper to the court
2.      Certifications Made: Above action certifies that
a.      Attorney/party has conducted into the matter that is reasonable under the circumstances
b.      Following are true to the best of “knowledge, information, and belief”
                                                                                                                                                  i.      Pleading, motion, or other paper is not being presented for any improper purpose, including harassment and delay
                                                                                                                                                ii.      All legal arguments in the paper are supported by either existing law or by non-frivolous argument to extend, modify, or reverse existing law
                                                                                                                                              iii.      All factual contentions are supported by evidence or are likely to be supported by evidence after further investigation, unsupported contentions are specifically identified
                                                                                                                                              iv.      All denials of factual contentions are supported by evidence or are reasonably based on belief or lack of information; unsupported identified
C.) Walker v Norwest Corp [355]: Facts: Involves example of pleading that makes claim not supported by law; P sued several D’s in federal court, relying on diversity jurisdiction, and failed to specifically state the citizenship of other D’s, only alleged that some D’s resided in same state as P. Rule: Complete diversity rule requires that no D can be from the same state as any P; court imposed sanctions because claims were not supported by law