CIVIL PROCEDURE
FALL 2001
CLASS 2 (8/23/01)
Columbus School of Law
The Catholic University of America
Professor Fischer

• 1. Class 1 slides are now posted on the web page at: http://www.law.edu/faculty/fischer/Civpro01/hom e.HTM
• 2. Every student should send me an e-mail by next
Monday (8/27) at 5 p.m. so I have correct addresses
• 3. Opportunity to switch seats/new seating plan
• 4. Handout on briefing cases
• 5. If you did not get a copy of previous handouts
(the Course Outline, Assignment List, or Slides from Class 1) you can pick them up in the break or after class

• Wrap-up of important points from last class
•
Tips for studying law
• The U.S. court system
•
Overview of the STAGES and IMPORTANT
CONCEPTS of a CIVIL ACTION
•
IMPORTANT NOTE: THIS IS A BROAD
OUTLINE. DETAILS WILL BE FILLED IN
OVER THE COURSE OF THE SEMESTER

•
Difference between civil/criminal cases
•
Difference between procedure/substantive law
•
Important concepts: parties, remedies, joinder

•
Read assignments carefully and critically
•
Argue with the reading material
•
Consider the procedural stage the case has reached
•
Look up rules/statutes mentioned in cases
• Pay attention to the language of rules and statutes
• Focus on facts
•
Bear in mind the historical/political context
•
Make your own study materials
•
Be patient and determined

•
Separate STATE and FEDERAL court systems
•
Each STATE and D.C. has its own court system

• Article III of the U.S. Constitution establishes a separate judicial branch of the federal government. What are the other two branches?
• Art. III provides for the U.S. Supreme Court
•
Pursuant to Art. III, Congress created several federal courts:
• Federal District Courts: Trial courts
•
U.S. Court of Appeals: Appellate Courts
• U.S. Supreme Court
•
Independence of the Federal Judiciary
• Life tenure
• Compensation

•
How many federal judicial districts are there in Maryland?
•
How many in Virginia?
•
How many total?

•
How many federal judicial districts are
there in Maryland? 1 - District of
Maryland
•
How many in Virginia? 2 - Eastern
District of Virginia, Western District of
Virginia
•
How many total? 94
•
Why do we care about judicial districts?

•
Federal Circuits
•
United States Courts of Appeals
•
How many federal circuits are there?
•
What circuit is Virginia in?
•
What circuit is Maryland in?
•
What about D.C.?

• How many federal circuits are there? Thirteen twelve regional plus the Federal Circuit
•
What circuit is Virginia in? Fourth Circuit
•
What circuit is Maryland in? Fourth Circuit
•
What about D.C.? District of Columbia Circuit
•
For a map of the federal circuits, please see: http://www.law.emory.edu/FEDCTS/

•
How many Supreme Court justices are there?
•
Who are the current justices?
•
Which president appointed each justice?

• Rehnquist C.J. (Nixon)
•
Stevens J. (Ford)
• O’Connor J. (Reagan)
•
Scalia J. (Reagan)
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Kennedy J. (Reagan)
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Souter J. (Bush)
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Thomas J. (Bush)
• Ginsburg J. (Clinton)
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Breyer J. (Clinton)
• See http://www.supremecourtus.gov

We’ll look at essential procedural concepts and mechanisms for 3 broad stages of a civil action in federal district court.
I. PRE-TRIAL
II. TRIAL
III. POST-TRIAL

1. CAUSE OF ACTION
2. JOINDER OF CLAIMS
3. JOINDER OF PARTIES
4. JURISDICTION
5. VENUE
6. PLEADING
7. DISCOVERY
8. PRE-TRIAL ADJUDICATION

A. COGNIZABILITY
B. CAUSE OF ACTION
C. ELEMENTS OF A CAUSE OF
ACTION

A. COGNIZABILITY : Is there a claim in substantive law?
B. CAUSE OF ACTION : What is the claim?
C. ELEMENTS : What elements make up the claim?

HYPOTHETICAL: Sidra despises the color burgundy. Her neighbor, Howard, drives a burgundy BMW. Sidra wants to sue Howard to force him to drive a different colored car.
DOES SIDRA HAVE A LEGALLY
COGNIZABLE CLAIM AGAINST
HOWARD?

•
Remember back to the hypothetical involving Andrew and George (see 8/21)
•
What is/are the CAUSE(S) OF ACTION that Andrew has against George?
•
What are the ELEMENTS of each such
CAUSE OF ACTION?

E.G. ELEMENTS OF THE TORT OF
BATTERY:
1. Intentional and
2. Unwanted Touching
To obtain a remedy in a civil action for battery, Andrew must prove ALL of these elements by a preponderance of the evidence

•
If Andrew wants to raise both a battery cause of action and a negligence cause of action against G, can A include both in the same lawsuit?

•
If Andrew wants to raise both a battery cause of action and a negligence cause of action against G, can A include both in the same lawsuit?
•
See: FRCP 18 for rules on joinder of claims A can bring as many claims as he has against G even if the claims are unrelated!

• If there is more than one potential defendant such as G and Doctor Danielle who treated A, can A join both as defendants in his action against G?
•
See FRCP 20 for rules on PERMISSIVE
JOINDER : “same transaction or occurrence test”
•
See FRCP 19 for rules on JOINDER OF
NECESSARY PARTIES
•
More complex joinder rules: FRCP 22
( INTERPLEADER ), 23 ( CLASS ACTIONS ),
24 ( INTERVENTION )

• John wants to bring a claim for breach of contract claiming $100,000 in damages against
Lisa in the U.S. District Court for the Northern
District of California. Does that court have the power to hear John’s claim against Lisa?
•
The court must have both:
A. PERSONAL JURISDICTION and
B. SUBJECT MATTER JURISDICTION
Does this court have both kinds of jurisdiction?

•
Can the California exercise personal jurisdiction over Lisa?
• The U.S. Constitution permits a state’s courts to exercise personal jurisdiction over a D if:
•
D has such MINIMUM CONTACTS with the state that it would comport with due process to require D to defend a lawsuit in that state AND
•
The state legislature has not enacted any additional limits to personal jurisdiction under
LONG-ARM STATUTES.
•
Remember: there may be more than one court that can lawfully exercise personal jurisdiction over Lisa

• Can a particular court (e.g. the U.S District
Court for the Northern District of California) hear the type of case (breach of contract action) that P (John) is bringing against D (Lisa)?
(Assume that the personal jurisdiction requirement is satisfied and breach of contract, a state law claim, does not arise under federal law)
• Explain the limits on the subject matter jurisdiction of this federal district court

SUBJECT MATTER JURISDICTION
OF FEDERAL COURTS IS LIMITED
• Article III of the U.S. Constitution requires
Congress to limit the jurisdiction of federal courts
•
Congress has enacted statutes granting limited subject matter jurisdiction to federal courts
(e.g. 28 U.S.C. §§ 1331 (diversity), 1332 (federal question))
• Where are these sections in your Supplement?

CONTRAST: SUBJECT MATTER
JURISDICTION OF STATE
COURTS
• Subject matter jurisdiction of state courts is generally broader than federal courts
•
Some state courts are courts of GENERAL
JURISDICTION (e.g. D.C. Superior Court)
•
Some state courts have LIMITED
JURISDICTION
•
Sometimes there is CONCURRENT jurisdiction between state and federal courts

• Assume A and G are both citizens of Wisconsin
•
Assume the amount in controversy requirement is met
• Assume further that A’s claim does not arise under a federal statute or the U.S. Constitution
•
Can A sue G in federal court in Wisconsin?

•
G is a citizen of New Hampshire
•
Can A sue G in federal court in
Wisconsin?

•
Even if there is personal jurisdiction, there is a further question: where within a state can a case be brought?
•
2 federal judicial districts in Wisconsin
•
Congress has enacted federal venue legislation: where do we find this?
•
There are also statutory venue rules for civil actions in state court

•
How do the parties frame their cases?
A. Complaint
B. Answer
C. Counterclaim
D. Third Party Claim (Impleader)
E. Cross-Claim

• Written statement of P’s case
: CB 1040
•
Pleading Rules: FRCP 7, 8
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Filing Rules: FRCP 3
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Service Rules: FRCP 4
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Request for a jury

•
Written response by D to Complaint : CB
1047
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Pleading Rules: FRCP 8
•
Filing Rules: FRCP 5
•
Service Rules: FRCP 5

•
Claim by D against P: FRCP 13
•
2 kinds of counterclaims
(a) COMPULSORY: if you don’t bring the counterclaim you’ll be barred from doing so in future
(b) PERMISSIVE

•
D wants to claim against a 3d party for reimbursement if D is found liable to P
•
CB 1069
•
See FRCP 14

•
See CB 1071
•
Requires at least 2 defendants
•
D1 wants to claim against D2
•
See FRCP 13(g)

•
What information can one party obtain from another party to the litigation?
•
E.g. INTERROGATORIES (see CB
1079), DEPOSITIONS (see CB 1083),
REQUESTS TO INSPECT/COPY
DOCUMENTS (see CB 1077)
•
See FRCP 26-37
•
Importance of district court rules and individual judges rules

•
Not all actions go to trial!
•
Contrast with settlement
•
MOTION to DISMISS Complaint (FRCP
12(b)
•
MOTION for SUMMARY JUDGMENT
(FRCP 56)

1. RULES FOR CONDUCT OF TRIAL
2. ADJUDICATION BEFORE THE END
OF TRIAL
3. BURDEN OF PERSUASION

• OPENING STATEMENTS
• P’s case: (direct examination of witnesses, cross-examination by D, re-examination by P)
(CB 1166)
•
Rules of EVIDENCE govern admissibility of witness testimony (another course)
• D’s case
•
CLOSING ARGUMENTS (CB 1191)
•
JURY INSTRUCTIONS (CB 1181)
•
VERDICT

•
DIRECTED VERDICT: See FRCP 50
• Motion based on other party’s failure to
meet BURDEN OF PRODUCTION on an essential ELEMENT of the CAUSE OF
ACTION (or DEFENSE)

•
What must a plaintiff persuade the factfinder to win a civil action?
•
What is the standard for criminal proceedings?

1. ENFORCEMENT OF JUDGMENT
2. POST-TRIAL MOTIONS AFFECTING
JUDGMENT
3. APPEALS
4. BINDING EFFECT OF JUDGMENT

•
A judgment is not enough if D does not comply with it
•
There are procedures for a successful P to
EXECUTE ON THE JUDGMENT, e.g. force the D to pay damages by seizing assets or garnishing wages

•
If losing party is unhappy with the verdict, can she get the trial judge to do something about it?
•
Motion for JUDGMENT
NOTWITHSTANDING THE VERDICT
FRCP 50
•
NEW TRIAL MOTION FRCP 59
•
MOTION TO VACATE JUDGMENT
FRCP 60

• We will not do much on appeals in this course
•
FINAL JUDGMENT rule
• Appeals from district court to U.S. Court of
Appeal in their region
•
Error must be revealed in record, there must be timely objection to error, and error must materially affect outcome of case
• Usually no new facts are considered on appeal
•
Generally must appeal 30 days after final judgment
•
Appeals to U.S. Supreme Court: WRIT OF
CERTIORARI

A. CLAIM PRECLUSION
B. ISSUE PRECLUSION

•
Polly sues Dolly for breach of contract, wins, and recovers $7,000 in damages. If
Polly thinks the judgment is too low, can she bring a second suit against Dolly?
•
After George kicks Andrew, Andrew sues
George for negligence and loses. Can
Andrew sue George for battery based on the same kick?

• B, a dog food manufacturer, has a contract to provide A, the owner of a kennel, with 200 lbs of
Super Grade Dog Chow and 500 lbs of Regular
Dog chow each week. A thinks that B has not complied with the contract between March and
June and sues B. A court determines that B’s supply of 700 lbs of Extra Special Grade Dog
Chow per week does not comply with the contract and A wins the case. A few months later, A complains that B has not complied with the contract between November and December and sues B. Can B argue that supplying 700 lbs of Extra Special Grade Dog Chow per week complies with the contract?

• Today’s class was an overview of the stages and essential concepts of a civil action I.
PRE-TRIAL II. AT TRIAL and III. POST
TRIAL.
•
Not every action will reach every stage or involve every concept discussed today
•
We will flesh out these concepts and procedural mechanisms later in the course so don’t worry if you’re a little confused at this point. Everything will come together as we proceed!