Civil Procedure Outline

This class concerns the “what” and the “how” of the federal court system:

what can you do and how can you do it?

Be mindful of the fundamental values of our system

Fairness & Efficiency

We want to decide the case on the merits, not some technicality because someone messed up a little nuance.

The US Court System

FRCP are adopted by SCOTUS but interpreted by the courts. How do the courts interpret the rules?

1. Notice and the Opportunity to Be Heard

   1. Service of Process

      1. Process: process consists of a summons and a copy of the complaint

         1. “Due process of law” requires court to provide adequate notice to the defendant of pending adjudication and an opportunity to respond.

         2. A “summons” is a court order telling the defendant to respond or face a default judgment.

      2. Rule 4: Service of summons and complaint.

         1. Rule 4(a)-(b) – Contents of summons signed by the clerk of the court.

         2. Rule 4(c)(1) – What documents must be served on the defendant.

         3. Rule 4(c)(2) – Service can be effected by a non-party who is at least 18 years old .

         4. Rule 4(d) – Waiver of service of process.

            1. Send process and waiver form to defendant with a self-addressed stamped envelope. If the defendant returns it, then he/she waives service of process. If the defendant does not return the waiver form within 30 days, then the plaintiff will have formally served the defendant. The defendant then will have to pay for the service.

            2. Defendant has not waived any defenses. This rule is just about mechanics.

         5. Rule 4(e) – Service on an individual.

            1. Rule 4(e)(2)

               1. Personal Service – Deliver the papers directly to the defendant – can be done anywhere in the forum state.

               2. Substituted Service – This is OK only at the defendant’s dwelling or usual abode, AND you must serve someone of suitable age and discretion who resides there.

               3. Agent Service – Serve the defendant’s agent.

            2. Rule 4(e)(1) – The court may also use any method for service of process that is allowed by state law of the state in which the federal court sits OR in which service was effected.

               1. e.g., if the state law allows service of process by mail, then you can serve by mail.

         6. Rule 4(h) – Service of process on a corporation. You must serve an officer or managing or general agent of that corporation. Also, Rule 4(e)(1) applies for service of process on a corporation that is allowed by state law.

         7. Rule 4(k)(1)(A) – Can serve process throughout the state in which the federal court sits. We can serve process out of the state only if a state court could have served process there, as well.

            1. Exceptions:

               1. Rule 4(k)(1)(B) – “The Bulge Rule.” We can serve process out of state as long as it is within 100 miles of a federal courthouse. However, this only applies to parties who are joined later under Rule 14 or Rule 19.

               2. Rule 4(k)(1)(C) – Federal statutes may allow for service of process outside of the state, subject to the state law in which the courts is. For example, statutory interpleader.

         8. Rule 4(m) – Process must be served within 120 days after filing the complaint. If you do not, the court will dismiss the case without prejudice unless you can show good cause for the delay.

   2. Constitutional Standard for Notice

      1. Method must be reasonably calculated under all the circumstances to apprise the party of the proceeding.

         1. Rio Properties, Inc. v. Rio International Interlink (9th Cir. 2002) – internet gambling

            1. Plaintiff could perform service of process via email under Rule 4(f)(3) given several failed attempts in serving an elusive international defendant. Each alternative method of service of process fulfilled constitutional notions of due process.

      2. If you are aware that the party did not receive notice, then you are required by due process to try until successful.

         1. e.g., service of process by mail returned by the post office.

2. Subject Matter Jurisdiction – Do we go to state court or federal court?

The plaintiff must have at least one claim that invokes diversity of citizenship jurisdiction or federal question jurisdiction to get a case into

federal court.

1. Diversity of Citizenship – § 1332(a)(1)

   1. Case must be between citizens of different states.

   2. Amount in controversy must exceed $75,000 (ultimate recovery is irrelevant to subject matter jurisdiction).

2. Federal Question – § 1331

   1. A claim that arises under federal law. Citizenship is irrelevant and amount in controversy does not matter.

3. Supplemental Jurisdiction – Allows a federal court to hear a claim that otherwise could not get into federal court.

   1. Additional claim joined in a case already in federal court which does not meet diversity of citizenship jurisdiction or federal question jurisdiction.

   2. § 1367 – Federal court has supplemental jurisdiction over claims that share a common nucleus of operative fact with a jurisdiction-invoking claim. The common nucleus test is always met by a claim that arises from the same t/o as the claim that has invoked an independent basis of federal subject matter jurisdiction.

      1. § 1367(a) – Grants supplemental jurisdiction to all claims that share a common nucleus of operative fact with the jurisdiction-invoking claim. [a crossclaim meets this requirement by definition].

      2. § 1367(b) – can remove supplemental jurisdiction – only applies in diversity cases re: plaintiffs:

         1. Claims by plaintiffs against parties joined under Rule 14, Rule 19, Rule 20, or Rule 24.

         2. Claims by Rule 19 plaintiffs.

         3. Claims asserted by people seeking to intervene as a plaintiff under Rule 24.

3. Pleadings – Gives notice to the other parties about our intentions.

   1. Rule 7(a)

      1. Complaint – Plaintiff’s claims.

      2. Answer to a complaint – Defendant’s responsive pleading.

      3. Other pleadings if relevant:

         1. Answer to a counterclaim designated as a counterclaim.

         2. Answer to a crossclaim.

         3. A third-party complaint.

         4. An answer to a third-party complaint.

         5. If the court orders one, a reply to an answer.

   2. Rule 11 – Discourages frivolous pleadings.

      1. Requires the attorney to sign all documents except for discovery documents.

      2. ...

Buy the full version of these notes or essay plans and more in our Civil Procedure Outlines.