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Excerpt from my draft outline for Civil Procedure:
I. Court Basics
a. Selecting a Proper Court
i. Court must have jurisdiction over the subject matter
ii. Court must have jurisdiction over the person (subject to or amenable to suit in the state where the court sits)
1. Probably state court, as federal courts’ SMJ is very limited
b. Typical state court organization
i. Courts of original jurisdiction: try cases
1. General jurisdiction courts: split into districts (covering counties)
2. Inferior jurisdiction: municipal courts, etc.; deal with smaller claims
3. Justice of the Peace courts: hear “very minor matters”
4. Specialized tribunals e.g. traffic courts
ii. Court of appellate jurisdiction: usually sits only to review lower court decisions
1. Most states have intermediate appellate courts
iii. State supreme court (by whatever name)
c. Federal Courts
i. Structure:
1. District courts: of orig. jur., at least one per state; reviewed by…
2. U.S. Courts of Appeals (11 numbered Circuits plus D.C. and Federal Circuits); reviewed by…
3. SCOTUS, which also reviews state court decisions with a federal issue
ii. Subject-Matter Jurisdiction
1. Many federal law cases
2. Many cases not involving federal law, but in which there is
a. Diversity jurisdiction (state courts may hear also; out-of-state defendant may remove to state’s federal district court)
b. Sufficient amount in controversy (>$75k)
3. SMJ is necessary but not sufficient:
a. Court must be one in which the party being sued can be required to appear; IPJ restrictions have diminished in recent decades in many states
b. Action must be brought in a court having proper venue
i. If federal court, district must have venue as defined by federal statute:
1. Where defendant resides,
2. Where substantial part of events leading to claim occurred, or
3. Where defendant is subject to personal jurisdiction
4. SMJ cannot be waived
a. However, D may waive personal or venue jur.
II. Commencing the Action
a. Service of process:
i. Gives D notice of commencement of action
ii. Consists of summons, which directs D to appear and defend under penalty of default judgment
iii. Types of service:
1. Personal: summons physically delivered to Dor left at his home
2. Substituted: for out-of-state Ds; registered mail, delivery to agent, etc.
3. Publication: if D can’t be located. Harder to uphold. Service “must be of a kind reasonably calculated to bring the action to D’s notice” (Friedenthal 7)
b. Pleading & Parties
i. Summons usually served with first of the pleadings
ii. Complaint: written statement containing P’s claim against D. Elements: Pleadings may be intended to…
1. Furnish basis for identifying and separating legal and factual contentions involved, so legal issues may be disposed of early on
2. Establish in advance what a party proposes to prove at trial, so that his opponent will know what contentions he must prepare to meet
3. Give each party only a general notice of his opponent’s intentions: subsequent stages of suit would identify parties’ legal and factual contentions and enable prep for case
c. Response #1: Motion to Dismiss
i. May challenge SM or IP jurisdiction, service of process, or venue
ii. Demurrer: motion to dismiss for failure to state a claim or cause of action (assumes complaint’s alleged facts are true)
iii. 3 situations in which motion to dismiss might be granted:
1. Complainant clearly shows law furnishes no redress for injury
2. P failed to include allegation or necessary part of case
3. Complaint is so general/confused that court finds it doesn’t give adequate notice of what the claim is
iv. Court generally has power to let P amend pleadings
v. If motion to dismiss is denied or not made, then D must file…
d. Response #2: Answer
i. Admit or deny complaint’s factual allegations
ii. Plead affirmative defenses (legal contentions, e.g. that P’s actions were negligent and caused the accident at issue)
1. Any affirmative defense not pleaded in the answer may not be brought up at trial.
e. Further Pleadings, such as reply by P, are possible, but usually pleadings are closed after D files answer; any new matters D raises will be considered automatically denied by P
i. Major exception: if D has claim against P, D may plead in his answer a counterclaim → necessitates answer by P
f. Other Parties: may come in at pleading stage; D may implead another party
III. Obtaining Info prior to Trial
a. Pretrial discovery:
IV. THIS IS DRIVING ME BATSHIT
I. Court Basics
a. Selecting a Proper Court
i. Court must have jurisdiction over the subject matter
ii. Court must have jurisdiction over the person (subject to or amenable to suit in the state where the court sits)
1. Probably state court, as federal courts’ SMJ is very limited
b. Typical state court organization
i. Courts of original jurisdiction: try cases
1. General jurisdiction courts: split into districts (covering counties)
2. Inferior jurisdiction: municipal courts, etc.; deal with smaller claims
3. Justice of the Peace courts: hear “very minor matters”
4. Specialized tribunals e.g. traffic courts
ii. Court of appellate jurisdiction: usually sits only to review lower court decisions
1. Most states have intermediate appellate courts
iii. State supreme court (by whatever name)
c. Federal Courts
i. Structure:
1. District courts: of orig. jur., at least one per state; reviewed by…
2. U.S. Courts of Appeals (11 numbered Circuits plus D.C. and Federal Circuits); reviewed by…
3. SCOTUS, which also reviews state court decisions with a federal issue
ii. Subject-Matter Jurisdiction
1. Many federal law cases
2. Many cases not involving federal law, but in which there is
a. Diversity jurisdiction (state courts may hear also; out-of-state defendant may remove to state’s federal district court)
b. Sufficient amount in controversy (>$75k)
3. SMJ is necessary but not sufficient:
a. Court must be one in which the party being sued can be required to appear; IPJ restrictions have diminished in recent decades in many states
b. Action must be brought in a court having proper venue
i. If federal court, district must have venue as defined by federal statute:
1. Where defendant resides,
2. Where substantial part of events leading to claim occurred, or
3. Where defendant is subject to personal jurisdiction
4. SMJ cannot be waived
a. However, D may waive personal or venue jur.
II. Commencing the Action
a. Service of process:
i. Gives D notice of commencement of action
ii. Consists of summons, which directs D to appear and defend under penalty of default judgment
iii. Types of service:
1. Personal: summons physically delivered to Dor left at his home
2. Substituted: for out-of-state Ds; registered mail, delivery to agent, etc.
3. Publication: if D can’t be located. Harder to uphold. Service “must be of a kind reasonably calculated to bring the action to D’s notice” (Friedenthal 7)
b. Pleading & Parties
i. Summons usually served with first of the pleadings
ii. Complaint: written statement containing P’s claim against D. Elements: Pleadings may be intended to…
1. Furnish basis for identifying and separating legal and factual contentions involved, so legal issues may be disposed of early on
2. Establish in advance what a party proposes to prove at trial, so that his opponent will know what contentions he must prepare to meet
3. Give each party only a general notice of his opponent’s intentions: subsequent stages of suit would identify parties’ legal and factual contentions and enable prep for case
c. Response #1: Motion to Dismiss
i. May challenge SM or IP jurisdiction, service of process, or venue
ii. Demurrer: motion to dismiss for failure to state a claim or cause of action (assumes complaint’s alleged facts are true)
iii. 3 situations in which motion to dismiss might be granted:
1. Complainant clearly shows law furnishes no redress for injury
2. P failed to include allegation or necessary part of case
3. Complaint is so general/confused that court finds it doesn’t give adequate notice of what the claim is
iv. Court generally has power to let P amend pleadings
v. If motion to dismiss is denied or not made, then D must file…
d. Response #2: Answer
i. Admit or deny complaint’s factual allegations
ii. Plead affirmative defenses (legal contentions, e.g. that P’s actions were negligent and caused the accident at issue)
1. Any affirmative defense not pleaded in the answer may not be brought up at trial.
e. Further Pleadings, such as reply by P, are possible, but usually pleadings are closed after D files answer; any new matters D raises will be considered automatically denied by P
i. Major exception: if D has claim against P, D may plead in his answer a counterclaim → necessitates answer by P
f. Other Parties: may come in at pleading stage; D may implead another party
III. Obtaining Info prior to Trial
a. Pretrial discovery:
IV. THIS IS DRIVING ME BATSHIT