CIVIL PROCEDURE

Motions

Appealability and Review

Jurisdiction
power of the court

Pleadings:

Preclusion

Discovery

Jury Trial

Venue
a limit on a Ps choice of where to file

Subject-matter jurisdiction:

  • Original
  • Supplemental
  • Removal

Personal Jurisdiction

Service of Process

SBJ --> state = general
SBJ --> federal = limited

Always begin with rule statement for SBJ with "Federal courts are court of limited jurisdiction."

Each claim must have an independent basis for jurisdiction

Objections to SMJ can NEVER be waived

SMJ Basis:

  1. Federal law claim
    • created by state but depends on substantial federal question = constitutional question
  2. Diversity jurisdiction
    • complete diversity of citizenship
    • $75,000+ in controversy
    • x Ds cannot aggregate claims - a D can aggregate all his/her claims to meet the $

Supplemental Jurisdiction
FC has discretion - state law claim - if there is "a common nucleus of operative facts between the state law claim and the federal claim

Original

Removal
Ds in state court may remove an action to the federal court if:

  • FC would have jx
  • all Ds consent
  • Notice of removal within 30 days
  • Federal law based defense not enough to remove

in personam:

  • person located within the state
  • consent
  • state's long arm statute

in rem:

  • parties' interest in a particular piece of property located within the state

quasi in rem:

  • attachment of real or personal ppty

Can be waived if not objected in the first pleading

Waiver
Agent service
State methods
Personal service

Proper venue if:

  • where any defendant resides, if all defendants reside in that state;
  • in the federal district where a substantial part of the claim arose or where the property is located; or
  • where the D can be found provided has PJx

can also be waived

Transfer:

  • D can file motion to transfer to where it could have been brought
  • doctrine of forum non conveniens

Joinder of Parties

Joinder of Claims

Complaint

First Responsive Pleading:

  • Either motion or answer
  • 21 days from DOS
  • Rule 12(b) defenses must also be filed within or defenses are waived

Rule 12(b) defenses that could be waived if not raised with first responsive pleading:

  • lack of personal jx
  • Insufficient service of process or insufficient process
  • improper venue
  • failure to state a claim
  • failure to join an indispensable party

    <SMJ cannot be waived>


Step 1:

Step 2:

Answer:

  • admit/deny every allegation in the complaint

Answer must include all 12(b) defense + all affirmative defenses
unless raised these can be waived

Affirmative defenses under Rule 8(c)(1):

  • accord and satisfaction
  • arbitration and award
  • assumption of risk
  • contributory negligence
  • discharge in bankruptcy
  • duress
  • estoppel
  • failure of consideration
  • fraud
  • illegality
  • injury by fellow servant
  • laches
  • licenses
  • payment
  • release
  • res judicata
  • Statute of Frauds
  • statute of limitations, and
  • waiver

Amendments
P may amend its complaint once as of right within 21 days

Mandatory disclosures are:

  • all supporting witnesses
  • all supporting documents
  • a damages computation
  • relevant insurance coverage

Methods:

  • Depositions
  • Interrogatories
  • Request for admissions
  • Production of documents
  • Request for physical or mental examination

Four critical motions:

  1. Summary Judgment
  2. Judgment as matter of law
  3. Default judgment
  4. Post trial motions

claims that have been fully litigated are barred:

  • res judicata
  • collateral estoppel

Judgment appealable within 30 days from the entry of the judgment
Motion for relief from a judgment:

  • Merit
  • Equity
  • New facts
  • Due diligence