· Civ Pro = Dispute Resolution
o Using the court to resolve disputes that people are unable to resolve
Intro
I Intro
A) The court must have PJ over the (D)
1) Can sue in any state in which the (D) has substantial contacts
2) Can sue in any state in which (D) has minimal contacts
3) Will not be tested on but need to know if they have contacts or not i.e. Do they have zero contacts
B) Must have SMJ over the claim
1) Federal SMJ – The claim arises under federal law because the elements of the claim (not the defense one party brings) are based on federal law
2) There is diversity of citizenship
3) Supplemental jurisdiction claim
4) Removal – When a (P) files in a state court, the (D) may have the right to go from state to federal court
C) Venue – Where do you go
D) Choice of Law/Erie
1) Where the suit is brought will have an impact
2) Depending on where the suit is brought will depend on the law which is applied and thus can change the result in the case
E) Pleading
1) Pleading give rise to fact issues – Allegation with denial gives rise to a fact issue
F) Discovery – Discover the evidence
G) Trial is the procedural device to resolve the fact issues
1) Use evidence to prove fact issues
2) Then give the procedural law to the jury and allow the jury to apply this to the evidence and come up w/ a verdict
H) Judgment
1) The judge will then enter the judgment which is the final ruling
II Pleadings
A) Pleading is the means by which the parties advise the court – and the other party – of the claims and defenses that they plan to assert at trial
1) A pleading is an allegation by the (P) or a response to the allegation by the (D)
2) It is a means to allege facts and put the (D) on notice – No proof is required
3) A motion is different then a pleading – Motions specifically ask the court to do something i.e. dismiss the case
B) To start the lawsuit the (P) must file a pleading with the court
1) Types of Initial Pleadings
(i) The complaint – Used by the (P) to start a lawsuit and state original claims
(ii) Answer with a counterclaim – The (D) is answering the (P)’s claim and is brining a new claim of his own and suing back with a counter claim
(iii)Answer with a cross claim – The (D) answering the (P) then bringing a new claim by suing another (D) in the law suit – (D) #1 suing (D) #2
(iv)3rd Party Complaint – Used by a (D) who uses it against a 3rd party (D) to state a 3rd party claim
2) Responsive Pleading
(i) Answer to the complaint – When the (D) answers the (P) complaint
(ii) Answer to the counter claim – The (P) is answering the (D)’s CC
(iii)Answer to the cross claim – The other (D)#2 is answering (D) #1 XC
(iv)Answer TO a 3rd party complaint – Used by a 3rd party (D) who is new to the action to state new defenses to a 3rd party claim but he can also state CC’s and XC’s
(v) Reply
(a) The court must order one
(b) (P) files a complaint, (D) answers, sometimes the court will order the (P) to “answer” the answer which is called a reply
C) Pleadings are used to state claims and bring defenses to those claims
1) Types of Claims
(i) An original claim – Done by the (P)
(ii) A counter claim – Done by the (D) in the answer to bring a claim back against the (P)
(iii) A cross claim – Done by one (D) against another (D) in the answer
(iv) 3rd party claim – Can be brought by both (P)’s and (D)’s
2) Types of Defenses
(i) Affirmative Defense
(a) You assume the allegations are true and admit the facts BUT you raise a legal justification for your acts i.e. I did it but he hit me so it was self defense
(b) Adding an additional fact to get the (D) off liability
(ii) 12(b) Defenses
(a) 12(b)(1) – Lack of SMJ
(b) 12(b)(2) – Lack of PJ**
(c) 12(b)(3) – Improper Venue**
(d) 12(b)(4) – Insufficiency of Process**
(e) 12(b)(5) – Insufficiency service of Process**
(f) 12(b)(6) – Failure to state a claim upon which relief can be granted
(g) 12(b)(7) – Failure to join a party under rule 19
(iii)Denials
(a) General Denial – Deny EVERYTHING (even name and address etc)
(b) Specific Denial – Deny specific things and admit those that are true
(c) Deny for lack sufficient knowledge and information – “I d
not liable – “I am not liable because it was self defense”
2) A counter claim is when the (D) isn’t necessary denying the (P) allegations they are simply suing the (P) back for something else
B) Compulsory Counter Claims
1) To determine if a CC is “compulsory” it must arise out of the “same transaction or occurrence” as the original claim
2) To determine if the CC arises out of the same “T or O” as the (P) original claim – look to the “logical relation test”
(i) Is there a logical relation between the (P) claim and the (D) counter claim
(ii) Do the claims have same facts, parties, same transaction etc – If yes then CCC
3) If it is a CCC – 99% of the time it will have SMJ because it is the same as SCNOOF – If test is not valid under TRO – Then most likely will not have SMJ either
4) Problem: In 2008 B purchased a house from S and gave a promissory note for $50,000, payable on January 2nd 2009, for the unpaid balance of the purchase price. In 2008, alleging numerous defects in the house, B sued S for breach of K and breach of warranty. Is S’s claim on the unpaid promissory note a CCC?
(i) Not a CCC because of the dates – The two claims definitely arise from the same TRO – However, the unpaid balance isn’t due until Jane 2nd 2009, but the (P) is bringing the lawsuit in 2008 which means at the time (D) really has no claim BOK claim. Therefore, under FRCP Rule 13 a (D) cannot bring a CCC at the same time the (P) sues if there is no claim.
C) Permissive Counter Claims
1) All other counter claims – If it is not a CCC then it is PCC
2) It is up to the pleader to assert these as they are not required and they do not arise out of the same TRO as the original claim
