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:
- Federal law claim
- created by state but depends on substantial federal question = constitutional question
- 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:
- Summary Judgment
- Judgment as matter of law
- Default judgment
- 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