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

I: INTRODUCTION
A.) THE CONCERN AND CHARACTER OF CIVIL PROCEDURE (p. 1)
·         Court’s exist to provide a decision “by an agent of state power, of a controversy existing between two individuals (or the State and an individual), by rational, considerations, purporting to rest on justice and law.
·         Points about courts:
1.      The judicial process deals with actual controversies between real parties and also helps to express abstract values for the society.
2.      Courts draw on public power to resolve controversies.
3.      This resolution proceeds not arbitrarily but according to some standards of general application.
4.      These standards are applied in a proceeding that follows some fixed lines set out by a system of rules known as procedure.
 
B.) AN OUTLINE OF THE PROCEDURE IN A CIVIL ACTION
1)      SELECTING A PROPER COURT
Court must have:
·         Jurisdiction over the subject matter
·         Jurisdiction over the person
Federal jurisdiction requires:
·         Diversity of citizenship—must have complete diversity
·         Amount in controversy must be more than $75,000
·         Federal question
·         May have supplemental jurisdiction—state question closely related to federal question that would not be answered alone
2)      COMMENCING THE ACTION
Service of process under Rule 4
·         Service is a summons and complaint
·         Different types of service
3)      PLEADING AND PARTIES
·         Plaintiff files complaint Rule 3
·         Purpose of pleadings: (1) determine the facts, (2) inform opponent of claims to be made at trial, (3) general notice
4)      THE RESPONSE
·         Defendant must respond within 30 days of service—if not a default judgment will be entered against defendant Rule 4
·         May file a motion to dismiss—may challenge the court’s jurisdiction over the subject matter, jurisdiction over the person, the service of process, or venue
·         Defendant may also file a motion to dismiss for failure to state a claim or cause of action Rule 12(6)(6)
·         If motion is denied, the defendant must answer—must admit or deny factual allegations
·         Technically the plaintiff can reply to the answer, but this almost never happens
 
5)      OBTAINING INFORMATION PRIOR TO TRIAL
·         Mandatory disclosure Rule 7.1
·         Discovery—may include depositions, written interrogatories, the production of documents, requests for admissions, physical examinations Rule 26
6)      SUMMARY JUDGMENT (Rule 56)
·         Supported by demonstrating that the crucial issue will have to be resolved in the mover’s favor at trial, because the opposing party will be unable to produce any admissible evidence in support of his/her position on the issue
7)      SETTING THE CASE FOR TRIAL
·         After discovery is completed, and if the case has not been terminated it must be set for trial.
·         Typically either party may file a note of issue, at which time the case will be given a number and placed on a trial calendar.
8)      THE JURY AND ITS SELECTION (“Voire dire”)
·         In most actions for damages, the parties have a right to have the facts tried by a jury—if neither party asserts this right a judge will try the facts as well as the law.
·         Attorneys interview prospective jurors and select a jury by exercising challenges for cause and preemptory challenges.
9)      THE TRIAL
·         Opening statements (Plaintiff goes first because they have the burden of proof)
·         Direct and cross examinations
·         Case in chief—witnesses and other evidence such as documents are entered
·         After plaintiff rests its case defendant may ask for a directed verdict (Motion for Judgment as a Matter of Law “MDU” Rule 50)
·         When both parties have rested either or both may move for a directed verdict.
·         If it is denied, the case is submitted to the jury
10) SUBMITTING THE CASE TO THE JURY
·         Each lawyer may submit proposed instructions to the judge but the judge gives the jury instructions which states who has the burden of persuasion on each issue of fact.
·         In a civil case a party must prove his or her contention on a given issue by a preponderance of the evidence.
·         Jury will then deliberate until a verdict is reached
11) POST-TRIAL MOTIONS
·         May move for a judgment notwithstanding the verdict Rule 50
·         Motion for a new trial Rule 59
·         Judgment as a matter of law Rule 50
12) THE JUDGMENT AND ITS ENFORCEMENT
·         Judgment is final absent an appeal
13) APPEAL
·         Generally the losing party has a right to appeal to at least one higher court
·         An appellate court may affirm, reverse, modify, or remand
14) THE CONCLUSIVENESS OF JUDGMENTS
·         Res judicata—a thing decided, and now at rest
 
 
C.) A NOTE ON PROCEDURAL RULES IN THE FEDERAL AND STATE COURTS (p. 24)
·         Rules of civil procedure derive from constitutional authority, statute, and judicial decisions
·         The rules apply to all causes of action no matter how complex or simple
 
D.) THE ARRIVAL OF MODERN PROCEDURE (pp. 552-553)
·         Chief characteristics of the Federal Rules are common sens

ng stage.
·         Modern pleading is influx, changes taking place
·         Before modern pleading there was:
1.      Common Pleading
·         Premised on notion that on going through motions of pleadings, cases could be based on the dispositive issue—prolonged paper trails (wars) (purpose 4)
2.      Code Pleading
·         Abolished forms of action and the distinction between law and equity
·         Focus shifted from detailed pleading of issues to facts (purpose 3)
·         Had to state facts sufficient to constitute a cause of action
·         Problems
(1) People weren’t sure how detailed the complaint had to be
(2) Distinctions were made on types of facts—people couldn’t tell the difference
·         In 1938, Judge Clark and reformers put in a new system in which pleadings were to give notice to the other side (purpose 1)
·         Functions of pleadings have changed over time
           
B.) DETAIL REQUIRED UNDER THE FEDERAL RULES (pp. 558-579)
 
Leatherman v. Tarrant Co. Narcotics Intelligence
·         No heightened standard of pleading—Only requires a short and plain statement Rule 8(a)
·         Rule 9(b) requires heightened pleading standard only for cases of fraud and mistake.
 
Dioguardi v. Durning  
Rule of Law: Rule 8(a) The Federal Rules of Civil Procedure only require that a complaint contain a short and plain statement of the claim showing a right to relief.
·         There is no pleading requirement of stating “facts sufficient to constitute a cause of action,” but only that there be “a short and plain statement of the claim showing that the pleader is entitled to relief,” Rule 8(a) that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. 
·         The motion for dismissal under Rule 12(b)(6) is for failure to state a claim upon which relief can be granted
 
Conley Rule: “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”.