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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
13 Courts of Appeal for the Circuit
State Supreme Court
(address errors of law)
94 Federal District Courts
(handle facts, evidence, witnesses, etc.)
FRCP are adopted by SCOTUS but interpreted by the courts. How do the courts interpret the rules?
1 Civil Procedure Outline
I. Notice and the Opportunity to Be Heard
A. Service of Process
1. Process: process consists of a summons and a copy of the complaint a. "Due process of law" requires court to provide adequate notice to the defendant of pending adjudication and an opportunity to respond.
b. A "summons" is a court order telling the defendant to respond or face a default judgment.
2. Rule 4: Service of summons and complaint.
a. Rule 4(a)-(b) - Contents of summons signed by the clerk of the court.
b. Rule 4(c)(1) - What documents must be served on the defendant.
c. Rule 4(c)(2) - Service can be effected by a non-party who is at least 18 years old .
d. Rule 4(d) - Waiver of service of process.
i. 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.
ii. Defendant has not waived any defenses. This rule is just about mechanics.
e. Rule 4(e) - Service on an individual.
i. 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.
ii. 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.
f. 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.
g. 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.
2 Civil Procedure Outline 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.
h. 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.
B. Constitutional Standard for Notice
1. Method must be reasonably calculated under all the circumstances to apprise the party of the proceeding.
a. RIO PROPERTIES, INC. v. RIO INTERNATIONAL INTERLINK (9th Cir. 2002) - internet gambling i.
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.
a. e.g., service of process by mail returned by the post office.
II. 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.
A. 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).
B. Federal Question - § 1331
1. A claim that arises under federal law. Citizenship is irrelevant and amount in controversy does not matter.
C. 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.
a. § 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].
b. § 1367(b) - can remove supplemental jurisdiction - only applies in diversity cases re: plaintiffs:
3 Civil Procedure Outline i.
Claims by plaintiffs against parties joined under Rule 14, Rule 19, Rule 20, or Rule 24.
ii. Claims by Rule 19 plaintiffs.
iii. Claims asserted by people seeking to intervene as a plaintiff under Rule 24.
III. Pleadings - Gives notice to the other parties about our intentions.
A. Rule 7(a)
1. Complaint - Plaintiff's claims.
2. Answer to a complaint - Defendant's responsive pleading.
3. Other pleadings if relevant:
a. Answer to a counterclaim designated as a counterclaim.
b. Answer to a crossclaim.
c. A third-party complaint.
d. An answer to a third-party complaint.
e. If the court orders one, a reply to an answer.
B. Rule 11 - Discourages frivolous pleadings.
1. Requires the attorney to sign all documents except for discovery documents.
2. Rule 11(b) - Certifies documents are accurate to the best of your knowledge, information, and belief, after a reasonable inquiry under the circumstances, that:
a. The document is not for an improper purpose (e.g., not being asserted to cause unnecessary delay or expense, not being asserted to harass the other party, etc.).
b. The legal contentions are warranted by law, or there is at least a non-frivolous argument that the law should change.
c. The plaintiff's factual contentions have evidentiary support or are likely to after further investigation.
d. The defendant's denials of factual contentions have evidentiary support or are likely to after further investigation.
3. Three procedural matters for Rule 11:
a. Continuing certification - Certification is effective every time you advocate a position from that document.
b. Sanctions - Discretionary with the court as to what sanction will be or if it is given at all (Rule 11(c)(4)).
Sanctions must be sufficient to deter a repeat of the conduct by the attorney, firm, or party. Sanction can be nonmonetary. A motion for sanctions is served on the other parties but is not filed.
i. Rule 11(c)(2) - Party-initiated Motions 1) Safe Harbor Doctrine - Party has 21 days to withdraw or amend challenged document before the court is notified.
2) FRANTZ v. UNITED STATES POWERLIFTING FEDERATION (7th Cir. 1987)
4 Civil Procedure Outline
Rule 11(c)(3) - Sua Sponte 1) Court has discretion to sanction party or attorney on its own initiative.
2) PATSY'S BRAND, INC. v. I.O.B. REALTY, INC. (SDNY 2002), vacated sub nom. IN RE PENNIE
& EDMONDS LLP (2d Cir. 2003)
C. Complaint - The lawsuit begins.
1. Rule 8(a) - What must be in the complaint.
a. Formal sufficiency - whether or not the complaint gives adequate notice to the defendants (due process)
b. Substantive sufficiency - whether a complaint states a claim you can win.
i. Rule 12(b) and Rule 12(b)(6)
1) 12(b)(6) - failure to state a claim. Plaintiff could not win because the law or facts are not enough to allow victory.
2) Motions to dismiss - facts and reasonable inferences about those facts are construed in favor of the plaintiff.
c. Grounds for subject matter jurisdiction.
d. "A short and plain statement of the claim" showing that plaintiff is entitled to relief.
i. CONLEY v. GIBSON (1957)
1) No longer good law due to IQBAL.
2) Complaint is sufficient unless there is no set of facts on which plaintiff could win.
3) Supported conclusory allegations.
ii. BELL ATLANTIC CORP. v. TWOMBLY (2007)
1) Complex anti-trust case. Plaintiffs gave instances of parallel conduct that might indicate conspiracy; however, SCOTUS said it needed plausible evidence of parallel conduct, not just allegations.
2) Tightened-up pleading standard: plaintiff must allege enough facts to state a plausible claim.
Allegations are not enough.
3) Introduced plausible standard of pleading.
iii. ASHCROFT v. IQBAL (2009)
1) SCOTUS says allegations are too conclusory. Plaintiff needs specific facts to support allegations.
1. SCOTUS took Twombly standard and applied it across the board.
2) Doesn't approach the complaint as a whole, but looks at the individual allegations and decides which ones are too conclusory.
e. Type of relief sought (e.g., damages, injunction).
ii. 5 Civil Procedure Outline
2. General Rule - Complaint must put the other side on notice. Complaint is sufficient if it meets the basic pleading standard.
i. Rule 9(b) - Circumstances constituting fraud or mistake must be pled with particularity.
ii. Rule 9(g) - Items of special damages must be pled with specificity. Special damages are those which do not normally flow from the event.
iii. Other rule or statute that requires specific pleadings.
1) SWIERKIEWICZ v. SOREMA N.A. (2002) - Title VII age discrimination case
1. Establishing a prima facie case [substantive requirements]
a. Plaintiff member of a protected class at time of firing.
b. Otherwise qualified for the position.
c. Received adverse treatment from employer.
d. Employer hired people to replace plaintiff.
2. Raised question of whether a claim gives adequate notice when it does not give evidence but must prove the prima facie case elements.
a. Court says it does give adequate notice because you can infer that elements can be proven.
D. Defendant's Response
1. Rule 12 - When the defendant receives notice of lawsuit, he/she has a choice of response. Within 20 days of service of process, the defendant can answer or can make a motion.
a. Rule 12(b) - Seven particular defenses that the defendant may raise in his/her answer or by a motion to dismiss.
i. Rule 12(b)(1) - Lack of subject matter jurisdiction.
12(b)(1) can be raised ii.
Rule 12(b)(2) - Lack of personal jurisdiction.
at any time, even on iii.
Rule 12(b)(3) - Improper Venue.
12(b)(2) - 12(b)(5)
iv. Rule 12(b)(4) - Insufficient process (document).
must be asserted in the v.
Rule 12(b)(5) - Insufficient service of process.
12(b)(6) & 12(b)(7)
first Rule 12 response vi.
Rule 12(b)(6) - Failure to state a claim.
can be raised at any or they are waived vii.
Rule 12(b)(7) - Failure to join an indispensable party.
time through trial.
i. Defendant can make a motion first. If the motion is denied, then the defendant files and serves an answer.
2. Answer a. Rule 8(b) - Respond to the allegations of the complaint
6 Civil Procedure Outline
Lack of sufficient information to admit or deny.
1) You cannot claim lack of sufficient information if this is a matter of public knowledge or if it is in your control (e.g., you have the information to answer the allegation but you don't want to find out).
2) KING VISION PAY PER VIEW, LTD. v. J.C. DIMITRI'S RESTAURANT, INC. (N.D. Ill. 1998)
b. Rule 8(c) - Raise affirmative defenses (e.g., statute of limitations, statute of frauds, res judicata, duress, estoppel).
i. An affirmative defense injects a new fact into the case. If the affirmative defense is correct, then the defendant will win.
1) e.g., it does not matter that I breached the contract, because the contract was not in writing as required by the statute of frauds; it does not matter if I committed that tort because it's too late under the statute of limitations.
ii. "Use it or lose it" - If you do not use an affirmative defense in your answer, you have waived that affirmative defense.
c. Failure to deny is treated as an admission on all allegations except damages.
E. Amended Pleadings
1. Rule 15 - Amended and Supplemental Pleadings.
a. Rule 15(a) - Gives us three basics rules of amendment.
i. Plaintiff has a right to amend once before defendant serves his/her answer.
ii. Defendant has the right to amend once within 20 days of serving his/her answer.
iii. If the right to amend has expired, then you seek leave of the court for permission to amend. The amendment shall be freely given when justice so requires. Court will not let you amend if it will prejudice the other side or if you have waited too long.
1) DUBICZ v. COMMONWEALTH EDISON CO. (7th Cir. 2004)
b. Rule 15(b) - Variance. When the evidence at trial does not match what was pleaded. There are two requirements for a party to amend its pleading at trial:
i. The party has to show that the new claim, affirmative defense, or evidence will aid in presenting the merits of the case.
ii. The other party has the opportunity to show that it will be prejudiced by this amendment.
1) If the other party does not object, we treat the pleading as though it is amended to show the new information; or i.
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