CIVIL PROCEDURE OUTLINE- FALL 2011 - BESSLER INTRODUCTION/OVERVIEW A. U.S.

operates under an adversary system, in which all responsibility is placed on the individual parties, as opposed to an inquisitional system (such as that which is found in countries which operate under civil law), in which the court conducts active and independent inquiries into the merits of the case B. Rule 2 - There is one form of action - the civil action 1. Courts of law and equity were combined into one a. Law provides for damages jury trial b. Equity provides injunctive action no jury trial used when an award of damages would be inadequate C. Civil actions require proof based upon the preponderance of the evidence D. Civil actions determine liability rather than guilt E. Forms of relief in Civil Actions 1. Declarative court defines rights and duties as dictated by the law limited by statutes 2. Specific court orders D to perform a specific action beyond real property this course is only used when damages would be inadequate 3. Compensatory court orders D to pay damages F. Considerations Prior to Filing A Civil Action 1. Is the grievance one for which relief may be furnished by the law 2. Probability of winning the lawsuit 3. Is winning worth the time, expense, and effort expended FOUR REQUIREMENTS FOR FEDERAL CIVIL TRIAL A. Subject Matter Jurisdiction 1. Subject Matter Jurisdiction is the power of a given court to render a valid binding judgment with respect to a given issue a. Capron v. Van Noorden A party cannot consent to jurisdiction in a federal court if no actual diversity exists. Subject Matter Jurisdiction cannot be waived by the parties.

2. Types a. Diversity of Jurisdiction 28 U.S.C. 1332 - requires a complete diversity of citizenship between opposing parties and amount in controversy must exceed $75,000 exclusive of costs and interest 1. Co-parties may be from the same state 2. Individuals can only have one place of citizenship - based upon domicile 3. Corporations may have two citizenships (1) based upon state of incorporation and (2) based upon primary their principle place of business 4. Erie Doctrine when a federal court hears a state law issue under diversity of citizenship, the court must apply the applicable state law. b. Federal Question - 28 U.S.C. 1331 requires the complaint to raise a question regarding a violation of a rights or interest provided for within the Constitution, laws, or treaties of the U.S. 1. Does not require a minimal amount in controversy c. Removal Jurisdiction allows D to remove an action from state court to a federal court if the federal court would have had original jurisdiction over the action d. Supplemental Jurisdiction - 28 U.S.C. 1367 allows a federal court to hear certain claims over which it would not have independent basis for subject matter jurisdiction. 1. Case must already be in federal court in order for supplemental claims to attach. B. Personal Jurisdiction 1. Personal Jurisdiction refers to the ability of the court to exercise power over a particular person (think territorial can P sue D in this state?) 2. Personal Jurisdiction CAN be waived (not an issue for P because P automatically waives by filing the claim in that jurisdiction) 3. Does the party have minimum contact w/ the state (resides, conducts business, citizenship, auto accident, etc)

4. Types a. In Personam Power is over the person 4 Ways to Achieve 1. If the individual is served w/ process within the state A. Party need not be domiciled in the state, he may be passing through, but if P brings D into the state by fraud or force to serve process, the service will be considered invalid 2. Individual is domiciled in the state A. Residency v. Domicile a person may have more than one residence but only one domicile. Domicile is the place where one intends to settle. 3. Individual has consented to be tried in the state 4. Individual has committed an act subjecting him to a long arm statute b. In Rem Power over property located within a state C. Venue 1. Venue refers to the proper federal district for the action to be brought 2. Plaintiff decides where = he is the master of his complaint 3. General Rule for determining proper venue: (1) where any D resides or (2) where a substantial part of the claim arose 4. Improper venue may be waived by parties 5. May be transferred to a court w/in the same judicial system a. Federal Court System is governed by FRCP 1. District Court Circuit Court U.S. Supreme Court 6. State cases which are improperly filed in federal court may be removed a. Maryland State Court System is governed by the Maryland Rules b. District Court Intermediate Court State Supreme Court could then be appealed to U.S. Supreme Court

D. Service of Process 1. Process consists of the summons (summons must be sealed) and a copy of complaint 2. Must be served within 120 days of the filing of complaint or the court will dismiss w/o prejudice 3. Can be served by any individual over the age of 18 4. D can waive service of process - the benefit of doing so is that they receive 60 days instead of 21 to answer 5. Types Personal v. Substitute a. Personal Service walk up and hand it to D b. Substitute 1. Process can be served at Ds dwelling w/ someone of a suitable age 2. Process can be served at Ds place of business w/ a responsible agent. Officer or agent must be someone with sufficient responsibility to deliver the papers. If served at a business, a copy must also be mailed to Ds home address. PLEADING A. Purpose of federal pleading pleadings can be viewed as a gate keeping device whose purpose is to keep frivolous cases out of the courts B. Complaint - an action is commenced by filing a complaint (Rule 3) 1. A complaint must contain (a) statement on grounds for subject matter jurisdiction, (b) short statement of the claim for which the pleader is entitle relief and (c) a demand for relief (AD DAMNUM or wherefore clause) 2. Heightened pleading standards for complaints alleging fraud facts in such complaints must be stated with particularity 3. Complaint must be signed attorney and include attorneys contact information this certifies that the facts are reasonable and true. Failure to do so may result in sanctions under Rule 11.

4. Conley v. Gibson any set of facts is sufficient. A complaint should not be dismissed for failure to state a claim unless it appears that beyond a doubt the P could not prove any facts in support of his claim which would entitle him to relief 5. Bell Atlantic Corp. v. Twombly overruled Conley heightened the pleading requirement for Federal civil cases, requiring Ps to include enough facts in their complaint to make it plausible not merely possible or conceivable that they will be able to prove facts to support their claims C. Pre-Answer Motions Prior to answering a complaint D may file a: 1. Rule 12(b) Motions to Dismiss (Demurrer) For: a. (1) Lack of Subject Matter Jurisdiction b. (2) Lack of Personal Jurisdiction c. (3) Improper Venue d. (4) Insufficient Process e. (5) Insufficient Service of Process f. (6) Failure to State A Claim For Which Relief Can Be Granted g. (7) Failure to Join A Party 2. Motion for a more definite statement 3. Motion to Strike D. Answers 1. Can admit, deny, or claim lack of sufficient knowledge to admit or deny 2. Answers must be made to each claim individually a. Zielinski v. Philadelphia Piers - Must make a specific denial of the parts of the complaint which are false and admit the parts which are true. 3. Must answer within 21 days unless service was waived 4. Failure to answer equates to an admission 5. Party may set out alternative and inconsistent claims (I didnt kick the dog, but if I did) 6. The answer must assert any affirmative defenses D might have such as statute of limitations, statute of frauds, res judicata, etc D has burden to prove beyond preponderance of the evidence.

E. Replies
1. Ps reply to Ds answer is required only if ordered by the court

F. Amendments to pleadings 1. Party may amend its pleading before served w/ response or w/in 21 days of service 2. Relation Back Rule 15(c) a. May relate back if allowed by applicable statute and if it arose out of the same occurrence b. Amendments which change the name of the party against whom a claim is asserted will relate back only if (1) the claim arose out of the same occurrence, (2) the new party to be charged has received notice, and (3) but for a mistake concerning the property parties identity, the action would have been brought against the new party G. Duty to investigate/ethical considerations Rule 11(b) 1. Attorneys have a duty to certify that the documents which they submit to the court are reasonable and true. Certification is accomplished by signing the documents. H. Sanctions Rule 11 1. The purpose of Rule 11(c) sanctions is to deter attorneys from submitting documents to the court in violation of Rule 11(b) 2. Sanctions may be monetary or nonmonetary directives 3. Sanctions may be brought by the court on its own initiative or by motion of opposing party 4. Safe Harbor Period Once a motion for sanctions has been raised there is a 21 day grace period in which an attorney may amend the complaint and avoid further proceedings.

JOINDER OF CLAIMS AND PARTIES A. It is important to remember that for every new party or claim that is joined, the court must have independent subject matter jurisdiction and personal jurisdiction over each new person or claim. This can be achieved by diversity jurisdiction, subject matter jurisdiction or supplemental jurisdiction (Always try the diversity and subject matter first) B. Joinder of Claims Rule 18 1. Any party may join any number and type of claims against another party 2. Claims can only be joined after a party has asserted one anchor claim 3. When multiple Ps or Ds are involved, it is essential that at least one claim arose out of the same occurrence in which all were involved 4. Jurisdiction - when jurisdiction is based upon diversity of citizenship, P may join all claims against D to satisfy the amount in controversy 5. POLICY ISSUE: Courts favor this because it is more efficient. C. Counterclaims Rule 13 1. Compulsory (a) must be filed or party will lose the right to file the claim in the future a. Factors in determining: (1) claim exists at the time of service of pleading, (2) claim arises out of same transaction or occurrence, (3) court has jurisdiction over required parties, and (4) the claim is not the subject of another action 2. Permissive (b) as long as there is SMJ and PJ, a party may assert any non-compulsory counterclaim. If the party chooses not to file the claim, they may file it in the future. D. Cross-claims Rule 13(g) 1. Co-parties may assert claims against each other that arise out of the same occurrence as the main action 2. Must have SMJ

E. Joinder of Parties 1. Misjoinder of parties is not grounds for a motion to dismiss, rather the parties should be severed or separate trials should be ordered by the court 2. Joinder of parties may be permissive or compulsory a. Permissive Joinder Rule 20(a) 1. Permitted if (a) claims arise from the same transaction or occurrence, (b) claims raise at least one common question of law or fact, and (c) have SMJ 2. Promotes efficiency 3. Used as a tactic (a) several people making the same claim makes the case stronger and (b) can pull resources one lawyer, one deposition, one discovery request, etc b. Compulsory Joinder - Necessary and Indispensable Parties 1. Trial cannot take place without them. Rule 19. If they do not partake, case may be dropped 2. Court cannot award complete relief without them 3. Non-partys interest may be harmed by absence 4. D may be subjected to multiple or inconsistent litigation 5. Three part test A. Are they necessary (a required party) B. If so, is it feasible to bring them into the case (if so the court will make sure party is joined) (why wouldnt it be feasible? perhaps no jurisdiction or in another country) C. If not, are they indispensible to the case (if so, then the case may be dismissed)

6. Ex. Bank of California Nat. Assn v. Superior Court - a case about the dividing of an estate that had many legatees across many countries. Court held that they were not indispensable parties. The court may determine any controversy before it, when it can be done without prejudice to the rights of others, but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in. 7. Ex. Provident Tradesmens Bank & Trust Co. v. Patterson - An auto accident where the owner of the car was ruled to be an indispensable party, which thereby destroyed the jurisdiction of the federal court. In deciding who is indispensable(required) the court uses R19(b) equity and good conscience test to protect four interests: P's interest in forum; D's interest to avoid multiple liabilities; outsider's interest; and public interest to an efficient and economical use of their money. F. Impleader 1. A sues B; B wants to implead C 2. Can only implead if the non-party is or may be liable for any part of the judgment that A may recover from B 3. Two purposes: a. Indemnification B is saying it was Cs fault 1. Ex. Jeub v. B/G Foods, Inc. - P sued D over bad ham served in a restaurant. D brought in TPD because it was their ham. P did not amend their complaint to include them. TPD moved to get dismissed since there was no cause of action against them. Motion denied R14 states that any non-party may be brought in who is or may be liable. b. Contribution B is saying we both did it (shared liability). In this case, A can sue B for everything. 4. POLICY ISSUE: Purpose of impleading is to reduce multiple trials
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G. Interpleader 1. Stakeholder with a limited sum of money attempts to join multiple parties to file all disputes for a limited fund. 2. P does not have to admit liability to any claimant and the claims do not have to have common origin. Once the court allows interpleading action, a trial by jury is available to determine issues of fact. 3. Used mostly in insurance cases where are multiple people making claims on the same policy 4. Rule 22a. Excess of $75,000 b. Venue - Where any claimant resides, events, occurred, or any claimant subject to personal jurisdiction at outset c. Complete Diversity d. Personal Jurisdiction - have to obtain personal jurisdiction over each claimant 5. Statutory 28 USC 1335 Provides more benefits a. $500 b. Venue - Where one or more claimant resides c. Minimal Diversity d. Personal Jurisdiction e. If you have stake holder and 3 claimants, you look only at claimants, you only have to have minimal diversity vs. complete with rule. You need at least two from different states.

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H. Intervention 1. Provides means for outsides to make themselves parities; other forms of joinder are only available to parties already in the claim. 2. Intervention as a Right - Rule 24(a)- Court must permit anyone to intervene who: a. Is given a right by federal statute (very rare) b. Or has an interest in the action which may be seriously impaired by the action and no existing party will adequately protect the partys interest 1. Ex. Smuck v. Hobson- case about discrimination by the school board on a basis of race and economics. After Board decided not to appeal, superintendent and a board member along with 20 parents motioned to intervene and appeal. Court held that only the parents of the students in the school system had an interest in the case. Three requirements for intervention: interest in the transaction; applicant impeded in protecting his interest by the action going forward without him; and his interest is not adequately represented by others. 3. Permissive intervention Rule 24(b) on timely motion, court may permit anyone with a common question of law or fact to intervene. a. Court will consider delay and detriment to parties already involved.

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I. Class Actions Rule 23 1. A named representative will be permitted to sue on behalf of the class if 2. The class is so numerous that joinder of all parties is impractical 3. There are questions of law or fact common to the class 4. The named parties interests are typical of the class 5. The named representative will ensure the fair and adequate representation of the absent members of the class 6. Court must certify the claim for it to be classified as a class action certification by the court includes definition of claims, issues, or defenses as well as appointment of class counsel 7. All members of the class are bound by the class judgment except those who notify the court of their desire to opt out 8. The court must approve any settlement or dismissal of the claim PRE-TRIAL MOTIONS A. Motions to Dismiss - Demurrer 1. Rule 12(b)(6) motion to dismiss for failure to state a claim B. Motions for Summary Judgment 1. Summary Judgment may be awarded if it appears as though there is no genuine dispute on issues of material fact and pleader is entitled to judgment as a matter of law 2. Either party can move for summary judgment 3. May move anytime until 30 days after discovery

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DISCOVERY A. Discovery Planning Conference Rule 26F 1. Conference is scheduled by the court 2. Parties must prepare a proposed plan for discovery and submit a written report to the Court within 14 days of the conference 3. Parties must decide on timing for discovery and list any issues they foresee 4. No discovery can take place until after this conference 5. Initial Discovery may take place at this time. B. Required Initial Disclosures within 14 days of the planning conference, and at least 14 days before trial, parties must provide certain information even if not specifically asked for, including the name, address, and phone numbers of all individuals likely to have discoverable information AND a copy of all documents that the party will use to support its claims. Parties are not required to release information which may impeach them and which they are not going to use at trial. C. Scope of Discovery 1. Can discover anything relevant to the claim or defense a. Relevant means reasonably calculated to lead to the discovery of admissible evidence 2. Privileged matter is not discoverable 1. This includes material considered work product and attorney-client privilege, mental impressions, opinions, legal conclusions, and legal theories 2. Privilege Log - If a party claims documents are protected they must submit a list of documents that they are claiming privilege over. 1. The log must list the sender/receiver of the document, date, and a short description of the contents.

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D. Interrogatories 1. Can have a max of 25 and answers must be served in 30 days 2. May not have multiple parts to a question (ex. 1A, 1B) 3. Duty to respond extends not only to knowledge of the party but also to those facts available to them 4. In re Auction Houses Antitrust Litigation- a party was required to answer interrogatories where information was in the possession of the former CEO E. Document Requests 1. Rule 34 provides for the production by a party (or by a non-party if accompanied by a subpoena) of physical material including documents relevant to the pending action 2. Requests should be as specific (avoid phrases such as all documents) 3. 30 days to respond 4. Cummins v. General Motors Corp -P sought to recover $ from D for injuries sustained in an auto accident. Jury found a verdict for D. P appealed later after finding video tapes from D that showed information P's thought should have been given in the mandatory disclosure. Court held that a party is not obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use. P has to ask for documents they want. F. Requests for Admission Rule 36 1. Any party for purposes of pending action, may serve request to admit the truth of any matters relating to the truth or genuineness of any matter or document described in the request 2. Matters will be considered admitted unless the party responds denying the truth

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G. Depositions Rule 30/31 1. Must be performed before someone authorized to take the court oath 2. May depose any person or party 3. Must request attendance by subpoena 4. Limit of 10 depositions this is negotiable 5. Limited to 1 day of 7 hours again, negotiable 6. A partys attorney may object for the record but the individual still must answer. Usability of the information will be decided by the court. 7. May be used to impeach an individual during the trial or as testimony for someone who is unable to attend the trial (due to death or other unforeseen reasons). H. Electronic Discovery 1. Electronically stored data need not be produced if the responding party identifies it as from a source not reasonably accessible because of undue burden or cost on a motion to compel, the court may impose cost-shifting (only granted if cost is extarodinarily expensive) I. Experts 1. Must disclose names of expert witnesses to be used at trial 2. Along with written report of their findings J. Mental and Physical Exams 1. Must be relevant and in controversy (ex. if mental illness is not a part of the claim, then there is no grounds to order an exam). K. Motion to Compel may be used in during discovery process to compel an opposing party to disclose requested material

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ADJUDICATON WITHOUT TRIAL A. Summary Judgment 1. Similar to a motion to dismiss but it is based on the facts rather than the pleading 2. If discovery evidence fails to show genuine issues of fact, the case may be dismissed 3. Standard of Review if a jury could decide either way, the case will not be dismissed 4. One benefit of motioning for SJ is that you receive a sneak peek of the other partys case. This could allow you to attempt settlement proceedings if SJ is not granted. B. Default judgment 1. A binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. C. Voluntary Dismissal 1. Occurs when P wants to dismiss the case (perhaps due to unexpected personal issues) 2. Voluntary dismissals are made w/o prejudice D. Involuntary Dismissal 1. Very rare Generally occurs when P files a claim but then fails to do what they are suppose to do 2. Involuntary Dismissals are made w/ prejudice

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E. Injunctions 1. A court-order stopping someone from doing something (non-monetary action) 2. Awarded by judges rather than juries 3. Types a. Temporary Restraining Orders may be granted for the brief period until the hearing on Ps request for preliminary injunction can occur b. Preliminary Injunctions- protects P from irreparable injury. There is a four part test to determine whether a preliminary injunction should be granted. The four parts are: 1. P must show that they are likely to win on merit 2. P must show that hell suffer irreparable damage without preliminary injunction 3. P must show that the balance of equities tip in his favor 4. P must show that injunction is in the public interest c. Permanent Injunctions 1. Used as the final judgment in a case JURY TRIALS A. Right to a Jury Trial Guaranteed by the 7th Amendment 1. Rule 38 requires a party who wants a jury trial to file a written demand with the court and to file it on the parties. 2. Failure to make such a request within 14 days of the filing of the final pleading constitutes a waiver of ones right to a jury trial 3. A demand for jury trial may be withdrawn only if all parties consent

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B. Jury Selection 1. Voir dire a. Each party has unlimited strikes for cause b. Each side gets 3 preemptory strikes (no reason needed) 2. Number of jurors - at least six but no more than 12 C. Jury Instructions may be taken from JIG, may be submitted by attorneys, may be written by judge or may be a combination thereof D. Judges vs. Juries a. Jury is desirable because collective judgment is more easily accepted, and by peers preferred to non-peers b. Judges typically hear cases in equity (injunctive relief) c. Juries typically hear cases of law (relief in damages) d. If it has both law and equity, you get a jury, can separate by issue a. Beacon Theatres v. Westover- Where there are both legal and equitable claims in the same case; the trial judge must ordinarily try the legal claims first so as to ensure the right of jury trial as to those claims. It did not forbid trial of equitable claims first, but held that only if the party asserting the equitable claims would be irreparably harmed by having these claims delayed until after hearing of legal claims, could court hear equitable claims first. E. Magistrate Judges can be appointed to work on pre-trial matters OR may hear the case if both parties agree to it.

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REMEDIES, JUDGMENTS AND POST-TRIAL MOTIONS A. Injunctive Relieve a permanent injunction may be issued as a final judgment B. Declaratory Relief a judgment of the court which determines the rights of parties without ordering anything be done or awarding damages. 1. For example, a party to a contract may seek the legal interpretation of a contract to determine the parties' rights, or an insured may seek a determination of insurance coverage under a policy. C. Verdicts the formal decision or finding made by a jury concerning the questions submitted to it during a trial. 1. Three Types a. General jury finds for P or D without any explanation b. Special jury is asked specific Qs upon which the judge will rule c. General verdict with special interrogatories jury gives a general verdict and is also asked to answer specific questions concerning ultimate facts in the case D. Judgment the final decree of the court which is made upon the jurys verdict 1. No appeal can be initiated until the final judgment is entered E. Post-Trial Motions 1. Motion for Judgment as a Matter of Law (Directed Verdict) Rule 50(a) a. Either party may move for a directed verdict which takes the case away from the jury and allows the judge to decide the outcome as a matter of law. b. The motion may be made only after the non-moving party has been fully heard on the issue (D may move for directed verdict after close of Ps case and P may move for directed verdict after close of Ds case.) c. The court has the power to direct a verdict only if a reasonable jury would not have a legally sufficient basis to find for the party on that issue

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2. Renewed Motion for Judgment as a Matter of Law (Judgment Notwithstanding the Verdict JNOV) a. Motion must be made no more than 28 days after entry of judgment b. Party making the motion must have made a motion for judgment as a matter of law at some point during the trial c. Standard is the same as a motion for JML (reasonable jury should not have reached the verdict which they did) d. Baltimore & Carolina Line, Inc. v. Redman - court cannot decide issues of fact, they are reserved for jury. e. Denman v. Spain- the court held that a judge may use his discretion to enter a judgment of JNOV if the judge feels there is not enough evidence for a reasonable jury to decide the issue. F. New Trials Rule 59 1. After the entry of judgment the losing party may file a motion for new trial 2. Must be filed no more than 28 days after judgment is entered 3. Grounds for motion a. Error regarding admissibility of evidence or the propriety of jury instructions b. Verdict entered is seriously erroneous in the opinion of the judge c. Juror misconduct d. Excessive or inadequate verdicts G. Relief from Judgment Rule 60 1. Reasons for Relief a. Mistake (Not Harmless) b. New evidence c. Fraud d. Judgment is void e. The judgment was previously satisfied f. Any other justified reason

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APPEALS A. Time to Appeal 1. Motion must be filed within 30 days from entry of judgment (60 days if the U.S. is a party to the action) 2. If a renewed motion for judgment as matter of law or a motion for new trial is entered then the 30 day time limit is terminated and restarts upon denial of said motions B. Scope of Appellate Review 1. Only final judgments are reviewable 2. Purposes a. Ensure correctness of the lower court b. Institutional review- to assure uniformity in the application of the law and furnish guidance to the lower court 3. Appellate Review a. Obligatory Review b. Discretionary Review c. De Novo review gets a new set of eyes. They look at the entire record again. d. Clearly Error

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