PART I: INTRODUCTION – COMMENCING A LAWSUIT
A. Characteristics—adversarial system, success/failure depends on procedure, idea of fairness (if each side has equal opportunity to have claims heard, decision will appropriate the “right” outcome)
B. Jurisdiction and venue
1. factors: convenience (location, knowledge, travel), tactical (backlogs, judicial familiarity)…In federal system: Personal and SMJ both must apply
2. Subject matter jurisdiction
i. Federal question (USC, federal common law), must be part of well plead complaint
1. doesn’t apply if Π anticipates Δ’s answer will involve federal question
ii. diversity jurisdiction: +$75,000, diversity at the time suit filed, not when action arose)
1. complete: different states (all parties—Π and ALL Δ’s)
2. foreigners: diversity if one party is foreigner, “alienage”
iii. other statutory basis for jurisdiction (ie: alien tort statute)
iv. supplemental §1367—Federal court hears claims for which it has no jurisdiction—additional claims that arise out of original claim (common nucleus of fact)
1. decline supplemental if: federal question isn’t central (only appendage to state claim, claim will be dismissed). Dismissed if court dismissed all claims which has original jurisdiction
3. Personal jurisdiction
i. Requirements of state statute met—minimum contacts
1. served in state
2. acted outside states to cause harm inside states
3. consent (express or K clause)
4. long arm statutes; state court can authorize jurisdiction over Δ based on specific types of contact with the state (transacting business, commission of act in state, act’s commission consequence within the state)
5. domicile: physical presence in state + intention to remain there (Hawkins v. Master Farms)
a. RULE: for the purposes of determining diversity jurisdiction, a person is a “citizen” of the state in which he or she is “domiciled”, which for adults is established by physical presence in a place in connection with the intent to remain there
6. non-resident motorists involved in accident in state
7. acts occurring out of state with consequences in state
8. corporations: place of incorporation or business
ii. due process requirement:
1. appropriate notice of action
2. opportunity to be heard
3. subjecting Δ to court’s jurisdiction wouldn’t be fair
The role of lawyers in Civil Litigation
A. Langbein article: Civil v. Common law systems (Handout)
B. Attorney
a. Treat client’s choices as their own
b. If lawyer does wrong, can allege misconduct (ex. Misses a statute of limitations)
c. Contingency agreements make representation more accessible (if you don’t win, I don’t get paid)
d. Client consents to lawyer’s knowledge, tactics and strategy)
Rule 3—Complaint commences a law suit
Serves 2 functions: 1. commences the action and 2. informs the Δ of the nature of the Π’s action (Rule 8 sets out the basis for the complaint/pleading)
C. Types of responses—6 basic responses to the summons and complaint
a. Defective jurisdiction, venue or process. A Δ may challenge the court’s power or authority to render a valid judgment in the case on several grounds (Rule 12(b)(1-5))
b. Lack of a claim. A Δ may deny that the substantive law under which Π sues gives Π a legal right to sue Δ. (Rule 12(b)(6)). Δ may also assert that Π has failed to join a party whose presence is needed for the court to decide the dispute (Rule 12 (b)(7)). Either 12(b) motion assumes the truth of the complaint’s factual allegations and instead decide on the basis of law.
c. Negative Defense. Δ may deny the truth of the complaint’s factual allegations (Rule 8(B))—in part or as a whole.
d. Affirmative defenses. Δ may wish to assert defenses that may wholly or partially defeat the Π’s right to recover against Δ. (Rule 8(c))
e. Clarification. Δ may respond that the complaint’s factual allegations are too vague, incomplete, or confuse
), loss or damage will result. Usually will dissolve by its own terms within a short period of time (10 days). This can turn into a preliminary injunction—would allow the courts to review the necessity for an injunction without allowing the Δ to take action (such as moving $$ from a US bank account to a Cayman Island bank account where it couldn’t be touched) Requirements for TRO (Rule 65(b))
ii. Ex Parte TRO: if giving notice of suit might give the other party time to do something irreparable and makes the moving party’s claim moot. (Rule 65(b))—requires showing of 1. specific facts showing immediate and irreparable injury before the adverse party can be heard, 2. certification of efforts to given notice or reasons why notice should not be required, and sometimes, 3. give security in cases wrongfully enjoined or restrained.
c. Defenses
i. 14th amendment—due process clause—applies only in states
ii. 5th amendment—applies to federal—identical language to the 14th amendment
B. Provisional Remedies and Due process
a. Requirement of hearing before seizure of property
Fuentes v. Shevin (pg. 369)—Landmark for consumer rights—Π challenged the constitutionality of the FL and PA prejudgment replevin statutes. Both statutes allow a private party to obtain a writ of replevin ordering state agents to seize the person’s possessions simply upon submitting a ex parte application. The private party merely claims a right to the property and posts a security bond. Neither statute provides an opportunity for a hearing prior to the property’s seizure nor do the
