LEGAL ADVICE

CIVIL PROCEDURE OUTLINE

Christopher Brainar

CivPro

Personal Jx=Where can D be sued?  1)State Stt?(argue both ways/make assumption); 2)Satisfy Con?

“Min contacts w/forum so that exercise of Jx doesn’t offend traditional notions of fair play & substantial Justice?” 

1)Tag(if not tricked); 2)Domicile; 3)Consent;

Min Contacts=International Shoe&Burger King:  Factors

1)Contact:  by purposeful availment Foreseeble;

2)Fairness:  does claim RELATED to contact.  Relatedness makes up for less contact vs more tie then none.

                                Convenience:  if severe disadvantage to D.  Almost never a good argument.

                                Interest:  state’s interest in deciding of the case.

Hypo:  Oh makes valve that supplier sends to NY & blows up.  Fair, convenience, Interest, Contact?  Makes Money.

InRem=dispose of Property in state; Quasi In Rem=if prop is related to dispute even though parties not have other contacts.

Subject Matter Jx=Diversity & FedQ.

Diversity=

1)>$75K=good faith exclusive of % than costs. (Unless clear to legal certainty its a lie);

Recover less then must pay costs;

Aggregation=multiple claims to >$75K if 1 P vs 1 D.

Joint Claims=go w/total value usually for property claims.

Pollution=does it decrease value more than or does it cost D more than to comply w/injunction.

2)Complete=real opposing parties not citizens same

state.

Domicile/Citizenship=Test at Time Case Filed(May change after event & filing to attain diversity.)=

People: domicile=presence+intent to make home once step into state; only one;

decedent’s/minor’s/incompetent’s=not estate/rep.

Corporation=anywhere incorp & one principle place of business[nerve center/muscle center];

Partnerships=look to citizenship of all partners) of same state(regardless of forum). 

Fed Question=Right/% under Fed Stt/Constitution. Well Pleaded Complaint=Must enforce a Fed right? Yes ok.

Supplemental Jx=Joinder: every claim must have its own basis like Diversity/Fed Q.  But if no diversity/Fed Q:

Pendent Claims=P claim’s in Fed Q case, more claims have come from same trxn/occurrence; still court discretion.

                                Eg. Mass v Mass in Antitrust 1)Fed, 2)State. Ok pendent claim.

Pendent Parties=P’s claim in Fed Q case, more claims against new D w/o diversity but same trxn/occurrence; still court Discretion(state law issues dominate/complex; Fed Q dismissed early)

Ancillary=Fed Q or Diversity:  Anyone but P.  Ds & 3^rd Parties can enter if same trxn/occurrence; court Discretion.

Removal=Only D (all Ds must agree) may remover from State to Same Fed District (if improperly filed then remand).  Not on a counterclaim.  Removal if diversity/Fed Q.  Diversity only=can’t remove if one of Ds is citizen of state(Tested w/ D citizen of state but Fed Q=removable!).  If one party dismisses & creates diversity or defeats removal then we can remove, but must be w/I yr of initial filing. 

Counterclaims= Permissive=in state court waives right to remove.  Compulsory=does not.

Law in Diversity under Erie

Substance=elements etc is state law. 

Procedural=Fed Rule CivPro or FRE then it is Federal procedure! If don’t say then apply 1)outcome determinative then state law; 2)Balance interests of State vs Fed; 3)Avoid forum shopping.

Tolling/Stt of limitations=substance.

Venue=After the above then where in State/what Federal District? 

Any case w/SMJ district brought where:

All Ds reside (If all Ds reside in different part of state then any of there Districts Ok )/

Substantial part of the claim arose. 

If no district anywhere in US(foreigner D& accident outside of US) Venue in

Fed Q case=any district where any D can be found or

Diversity/Fed Q=any Venue/District where D is subject to Personal Jx. 

                Residence=people: domicile.  Corp: resides in every district w/personal Jx(broader citizenship&domicile).

Service of Process=wi 120days of filing of complaint or else dismissed w/ prejudiceèNotice & Chance to be heard: 1)Summons{you’ve been sued} & 2)Copy of Complaint.

Any non-party D’s agent. 

Method of Service of Fed/State of service or of Forum

Fed=Anywhere in State. Substituted Service=usual abode w/someone suitable age who resides there (not babysitters).  Agent=D’s agent by Stt or by contract or actual if authorized to receive.  Waiver by Mail=Process mailed by first class mail if D returns wi 30 days.  Process delivered to D in another state if state law allows Fed w/long arm stt allows:  On own regardless of state law w/bulge rule(necessary indispensible parties or impleader); Stt interpleader.

Pleadings=FRCP “notice” pleading.

Rule 11=Continuing certification:  Attorney sign all pleadings & papers & all papers certifying to best of knowledge & belief:

                1)not for improper purpose; 2)legal contentions warranted by law(non-frivilous); 3)factual contentions have evidentiary support(good faith future support); 4)denials of factual contentions have likely evidentiary support.

Continuing Obligation; Party alleging violation gives notice and other has 21 days to cure then file w/court.  Sanctions may be levied, enough to deter behaviour.

Complaint: Statement of SMJ; Short & Plain statement of claim showing entitled to relief(notice); demand for judgment.  Fraud, Mistake & Special damages=must be plead w/ particularity(more than notice).

Defendant’s Response=wi 20days.

Motions=wi 20 days.

12(e)=more definite b/c complaint vague; 12(f)motion to strike=immaterial allegations, cheap shots, etc.

Matters of abatement(technical)=

                                Personal Jx/Improper venue/Insufficiency of Process/Service of process=In 1^st 12(b) or Waived.

                Lack of SMJ/Failure to Join Indispensable party=anytime before end of trial. SMJ trial.

Answer=wi 20

Timing=must be file wi 20 days of service or wi 10 days of motion.  If waiver then 60 days to answer.

Response=Admit/Denial/state lack of sufficient info to admit/deny.  If have then admitted b/c failed to deny.

Affirmative Defense=must be in the answer(Stt limitations/ Res Judicata/even if I did this you can’t win).

Counterclaim=offensive claim against opposing party wi answer(responsive pleading).

Compulsory=Arises from same Trxn/Occurrence. Not file then it is waived/can’t sue.

Permissive=not from same Trxn/Occurrence.  Save for a different suit.

                If you need SMJx=Supplemental Jx for Compulsory, but not for Permissive!

Crossclaim=offensive claim against co-party. Not Compulsory.

Arise from same Trxn/Occurrence as underlying claim. Supplemental Jx always available if needed.

Amending Pleadings=P has right to amend & put in more claims/theories once before answer.  D has right to amend once wi 20days of serving answer.  If no right to amend then court discretion but it is in there discretion: 1)delay & 2)prejudice.

Motion to Amend Pleadings/Conference Agreement to fit Evidence=K claim but evidence of Assault.  But if object to evidence b/c it is at “variance w/ pleading” then it wasn’t evidence & then no amending b/c not in evidence.

Amended Pleadings Relate Back if they concern same conduct/trxn/occurrence=treated as when 1^st filed before Stt of limitations. 

Amend Pleading w/New Party Relates Back: if 1)Same conduct/trxn/occurrence & new Party Knew that but for a mistake would have been the one sued.  Sued the wrong guy & right guy knows.

Joinder=FRCP allows liberally unless too complex may separate.

Proper Parties= Co-Ds & Co-Ps may be join claims: 1)arise from same T/O; 2)raise at least one common question.

Necessary Joinder=Necessary & indispensible parties=Absentees who are necessary to the suit: 1)w/o party can’t grant relief; 2)absentee % may suffer harm; 3)D may get hit w/multiple liability.  Joint Tortfeasors are not necessary parties!  Usually Necessary Parties are in property cases=e.g Wayne wins Garth will lose own.  If necessary party is not “feasible” b/c would destroys diversity or no personal jx=either proceed w/o them or dismiss the whole case-indispensible party(alternative forum{state court}; actual likelihood of prejudice; can court shape relief to avoid the prejudice).

Impleader=(not interpleader)Joining new people for liability.  Vicarious liability situation.  Must be a derivative claim.  D brings in new party as jointfeasor Indeminification(insurance co), or Contribution.

1)file 3^rd party complaint 2)service process on new party.

After Impleaded:  P can assert claim against Impleaded if same T/O as underlying dispute.(hypotenus).  Impleaded can assert claim down to P after Impleaded if T/O. 

Now SMJ=original claim b/c we determined it.  Supplemental Jx ancillary for P to impleaded b/c ancillary are just for Ds.  But may assert pendant claim b/c it is Fed Q & allows P! 

Service by Bulge Rule=(regardless of state law)for necessary party Joinder or impleader but not for original Ds!!!

Intervention=timely;  of Right=% harmed & not adequately represented.  Permissive=need at least one common question.  If intervention destroys diversity:  permissive no. If as of right then allowed if as D then you come in but not as P.  Makes less likely for Exam topic.

Interpleader=Stake Holder forces all potential parties/Claimants into one lawsuit to prevent multiple liability&suits.

Rule Interpleader=diversity case w/ stakeholder diverse from all claimants & need amount in controversy & venue & service of process.

Statutory Interpleader=just one claimant diverse from another(stakeholder irrelevant), $500 or more.  Venue where any claimant resides.  Nationwide service of process so always have Personal Jx too!

Claims=p 17

Class Axn=Rep sues on behalf of group: 

Step 1: 1)too numerous for practical joinder; 2)some questions of law or fact common; 3)Rep must have a typical claim; 4)Rep & lawyer must fairly & adequately represent the class.

Step 2 must fit in one of these: 

1)”Prejudice” class treatment necessary to avoid harm either to class member or party opposing class. Eg. many claimnats to fund.

2)Injunction/Declaratory judgment sought because class was treated alike by another party. Not Damages!

3)Damages: 1)common questions predominate; 2)class axn is superior method to handle dispute.  Exam question here likely; like mass tort .

Step 3: notification only necessary w type 3)Damages.  Class rep pays for notice individual notice to all members rsbly Identifiable.

Step 4: can opt out of  Type 3 Class axn.

Step 5:  SMJ. If diversity need only diverse representative and D. Amount in Controversy=Split: each member must have claim over $75K;  some courts say if reps claim is over $75K even if others.

Discovery=FRCP very liberal.

Required Disclosures=must produce w/o request:  intitial disclosures wi 10 days of Rule 26(f) meeting.  1)Id persons & documents w/info relevant to disputed facts alleged w/particularity in pleadings. 2)Experts & compensation. 3)No later than 30 days prior to trial produce detailed info about trial evidence, witnesses & documents.

Discovery Tools=

Depostions=oral or written:  sworn statements in response to Qs. Party or supeonaed non-party.

Interrogatories=Qs in writting to another party.  Answered in writing under oath after rsbl investigation unless burdensome then give them files to look if want.  May use other parties purposes. 25 Qs only. Parties only.

Request Produce=party or supeona non-party.

Physical/Mental Examination= only w/ court order w/ proper showing so not

Requests for Admissions=

Every request & response is signed & certified = just like Rule 11.

Duty to Supplement=must if becomes incomlete or incorrect. Continuing duty.

Substantive Scope of discovery=anything relevant or rsbly leads to admissible evidence(not admissible itself).

Privileged matter not discoverable.

Work Product=materials generated in anticipation of litigation=1)substantial need & not otherwise discoverable(written statement regarding incident); 2)Mental impressions, theories, opinions or conclusions=you can’t get it(not based on defenses fromwitness statements; note that client stupid).

Work Product may be generated by any representative of party or party himself.(private investigator=same analysis)

Expert Witness=

Enforcement of discovery Rules=usually betweeen parties. 

1)Presented to Court:

a)Receiving party seeks Protective order b/c over burdensome. 

b)Party answers some&objects to others=sanction but just a small one b/c partial.

c)Receiving party fails completely to attend depo/respond interrogatory/respond to request for production.

2)Enforcement Tools=

a)Against Party:  make motion, must certify that you tried to get the materials from other side:

i)        Situation 1)b):  order compelling answers plus costs.

ii)       Violation of order compelling: Rambo + costs & attorney’s fees & could be held in contempt(except no contempt for refusal to submit to metal/physical exam)

iii)     Situation 1)c): Rambo + costs & attorney’s fees

iv)     False denial of request to admit: recover only costs & attorney’s fees of having to prove issue.

v)       Unjustified failure to make required disclosure: other side can choose to treat as a situation 1)b) or 1)c).  Also, party failing to make disclosure may not use that evidence at trial, unless failure was harmless/justified.

Rambo Sanctions=

Establishment order: establishes facts as true.

Strike pleadings of disobedient party.

Disallow evidence from disobedient party

Bad Faith: Dismiss P’s case/Default judgment against Defendant

b)Against Non-party=contempt for violation of subpoena/court order

c)Against Attorney=liable for expenses(including attorney’s fees) incurred by other side if counseled one of these bad act.

Termination of Cae w/o Trial

Voluntary Dismissal

P may dismiss(file for dismissal) once w/o prejudice if before serves answer or moves for summary judgment.  On 2^nd time it is dismissed w/prejudice even if state court.  If answer is already answered then can dismiss w/court order or w/written stipulation.

Default & Default Judgment

Default Entry by Clerk to enter b/c: non response & for some certain(liquidated claim) & affidavit that sum owed & person sued is not an incompetent or minor.

Amount uncertain then not clerk but to judge for hearing on damages & D gets no notice.

If files motion but no answer:  here we have a hearing on damages but gets notice b/c made appearance.

Relief from default=good cause(excusable neglect) & viable defense(basically same).

Dismissal for Failure to State Claim/Just Complaint(Pleadings)=12(b)(6):  look at all allegations of Ps claim as true & P still can’t win=demurrer. Or after answer in. Then same thing is judgment on the pleadings. “So what?”

Summary Judgment

1)no issue of material fact; 2)Entitled to judgment as matter law.  Here judge looks at evidence thus far.  Only reason we go to trial to resolve a dispute of fact.  Look at from their point of view & we still win. 

If pleadings but motion w/affidavits then it is SJ!   Not on pleadings

If one party submits evidence(affidavtis) in support of SJ then other side must submit evidence & not rely on pleadings=or else they lose!!  On only evidence we have so wins!

Evidence in SJ must be admissible otherwise not good(cross over w/ evidence!!). personal knowledge+veracity.  Don’t look at weight just existence.  If dispute we go to trial.

Pretrial  Conferences=as needed to expedite case & foster settlement;  final pretrial order basically supersedes the pleadings unless judge orders amend “to prevent manifest injustice.”  But remember can amend back pleadings or pretrial conference b/c put evidence in on other theory.

Jury=must be demanded in pleading or 10 days of last pleading raising jury triable issue.

7^th Amend(fed required only)Right to jury in law but not in equity. 

If both then judge determines equity issues after the legal issues w/jury!

Jury Selection=for cause unlimited(bias/related/etc);  3 peremptory strikes per side but not for race/gender.

Motion for Judgment as Matter of Law(Directed Verdict/)=D can bring twice at end of P’s evidence and P& D can move at end of all evidence:  Standard=rsbl people could not disagree on the result(so not to jury).

Renewed Motion for Judgment as Matter of Law JNOV(Judgment not withstanding the verdict) now is = must be brought wi 10days of verdict: Standard=same.  Must have made the Motion as matter of law at close of evidence. Hypo:  D moved at close of Ps case but not at end of all evidence and now can’t renew motion!

Motions for New Trial=error must be moved for in 10days. Grounds: Unfair (wrong jury inst/evidentiary ruling); new evidence; prejudical misconduct of party/juror; Judgment is against weight of evidence.

Appeal

Final Judgment Rule=after making order, does trial court have anything left to do on merits of case?

SJ=no appeal;  Motion new trial=no; grant denial of renewed motion=grant yes; denied=no.

Res Judicata & Collateral Estoppel

Res Judicata(claim preclusion)=you only get to sue on claim once; one bite at apple. Res Judicata:

                Both cases brought by same claimant against the same defendant.

                1^st suit must have ended valid final judgment on merits(default all judgments unless based on personal Jx/venue/ indispensable parties).

                Must involve same “claim.”  Claim is relief arising from a T/O or series of related txns. Split:  Maj says same Trxn;  Min=a separate claim for each right!  property damage & personal injury, even if they were caused in single trxn.

Collateral Estoppel=issue

                1)1^st case end on merits!

                2)Must show same issue.  Only to issues that was actually litigated not default judgment

                3)Issue essential to 1^st judgment.

                4)Against one who was a party to original suit or representative. Due Process!

                5)Split: Mutuality=Traditional View:  asserted by one who was party or representative party in original. Not DP! 

Non mutual defensive collateral Estoppel=against party by non party if had an full opportunity to litigate in first.

                Non mutual Offensive collateral estoppel=P as non-party against D former party & allowed in some courts if fair:  1) opportunity to litigate; 2)foresee multiple litigation; 3)non-origianl party couldn’t have joined easily in 1^st case; 4)No inconsistent judgments.

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