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Civil Procedure II
West Virginia University School of Law
DiSalvo, Charles R.

 
Outline
Civil Procedure
Professor DiSalvo
Spring 2005
 
 
Steps in a Case
 
1.      find a theory of law to base your case on
2.      file a complaint with the clerk and then serve on defendant
3.      the defendant must file a response to the complaint—either a motion to dismiss or an answer (if motion to dismiss is granted then P can appeal)
4.      file an answer admitting or denying allegations/ also plead affirmative defenses
5.      Discovery- parties get information from each other –inter., RFPOD,
6.      Motion for summary judgment from defendant—not enough information to take to trial—if granted, appeal, if denied go to trial
7.      Trial will go before a jury usually if parties demand. Judge can hear a case w/o factual questions
8.      Jury is impaneled
9.      P- opening statement
10. D- opening statement
11. P- case in chief—documents in
12. After P’s case, D’s motion for directed verdict—if granted P appeals, if denied continue
13. D- puts on case in chief
14. Closing arguments by P and D, rebuttal closing by P
15. Jury instructions in federal court—in state court jury instructions come before jury instructions
16. Verdict
17. Post-trial motions— (judgment not withstanding verdict, or new trial)
18. If D loses those motions, appeal, if D wins P appeals
19. Supreme Court could allow a new trial—-if P loses—appeal!
 
 
Initial Rules of Civil Procedure
 
Rule 1 Scope of Rules
the just speedy inexpensive determination of every action
rule makers want simple rules to do away with technicalities
these rules just apply to civil cases not criminal
at law- $$ damages, jury
in equity- judge rule, injunct

trespass, etc.)
 
Rule 3 Commencement of Action
civil action is commenced by filing a complaint with a court
relates to SOL (time to file a complaint within a court)
filing a with the court- taking the complaint and giving it to the clerk of the court (rule 5(e))
 
Rule 4 Summons
summons (what hails the defendant into court)
4(a)à detailed description
requires that a summons be served with a complaint within 120 days
after 120 days, can move for dismissal without prejudice
can also dismissed on the courts own initiative
the court can also extend time for service for good cause
rule doesn’t define good cause, judge does
good cause à can’t find plaintiff, in coma, etc.
SOL expired à not good cause
4(c )(2) à to serve 18 and not a party
 
4(d) à waiver of service
                        -waives right to serviceà in return gets extras
 
4(e)(2) àhow to serve process 
 
4(e)(2) à dwelling house, suitable age and discretionà doesn’t give actual age (should be 18)
 
 
**WV Rule 4 à permits personal service
-4(c )(3)(B) mail through clerks office
 
 
 
Rule 5 Service and Filing Pleadings and Other Papers
 
5(a) à File papers subsequent papers with the court and serve on the opponent
5(b) àmust serve all papers on the opposing attorney
 
Serving by:
–         handing to person
–         by mail
–            electronic meansà fax machine, internet filing (must be consented to in writing
 
5(d)à Certificate of Service