Civil Procedure - Chapter 1

Question 1

What will experienced lawyers say is the most important decision in a lawsuit?

Answer 1

A particular client

• Want to know you can rely on their truthfulness
• Weight the costs and balances (if the stakes warrant the investment - benefit v. costs)

Question 2

If a case is $8,000 or less, which jurisdiction will it belong to?

Answer 2

Small claims court

Question 3

What is the #1 Bar complaint?

Answer 3

Not communicating with client

Question 4

As you encounter cases in this course you will have two questions to answer:

Answer 4

(1) What principle of law determined who prevailed in this situation?
(2) Which lawyer picked this particular fight and why - what strategic or tactical advantage was she hoping to achieve?

Question 5

Suppose Attorney Sands files a suit seeking recovery for personal injuries but not for damage to Peter’s car.

How does the court remedy this situation?
How would Peter recover damages to the car?

Answer 5

• The vehicle will not be covered under the lawsuit.
• Most often the Court will allow Attorney Sands to amend her claim by adding property damage and allowing the defense extended time to prepare.
• If the Court does not grant an amended claim, then Peter can sue Attorney Sands for malpractice because, as an attorney, Attorney Sands should have known that all claims need to be filed together at once.

Question 6

Describe Personal Jurisdiction.

Answer 6

The court’s power over the parties, specifically the defendant, in a case.

• Can the plaintiff sue the defendant in this state?

Question 7

What judges are appointed for life?

Answer 7

Federal judges

Question 8

Most federal districts are larger than their state equivalents so jurors will be drawn from a broader pool. Consider how this fact might have affected the strategy of the plaintiff’s lawyer in Hawkins v. Masters Farm.

Question 9

What kind of jurisdiction does the state court v. federal courts have?

Answer 9

Federal courts have limited subject matter jurisdiction, while state courts can hear any kind of case as long as it does not violate personal jurisdiction.

Question 10

Can Peter file his case in federal court? Why?

Question 11

What are the two kinds of cases federal courts have subject matter jurisdiction over?

Answer 11

(1) Diversity Jurisdiction (citizens live in different states)
(2) Federal Question

Question 12

A court cannot exercise power over Dodge (defendant) unless what?

Answer 12

The state has some connection with him or the accident that gave rise to Peter’s claim.

(Personal Jurisdiction)

Question 13

Describe Subject Matter Jurisdiction.

Answer 13

The Courts power over the case.

In what Court in that state is the plaintiff going to sue? (State or Federal?)

Question 14

What kind of kind of jurisdiction do state courts have?

Answer 14

General subject matter jurisdiction. Can hear any kind of case.

Question 15

What kind of jurisdiction do federal courts have?

Answer 15

Limited subject matter jurisdiction.

(1) Diversity Jurisdiction
(2) Federal Question

Question 16

Why do Federal courts have limited subject matter jurisdiction?

Answer 16

Constitution under Article 3

Question 17

What happened in Hawkins v. Masters Farm, Inc.?

Answer 17

Facts:
Creal was killed in Kansas in a collision with a tractor driven by Masters, a Kansas resident. At the time of his death, Creal was living in Kansas with his wife. Previously, Creal had been living with his mother in Missouri, and until they moved into an apartment together Creal spent nights with Ms. Creal but returned to his mother’s home after work every evening. Creal eventually moved into a house with his wife and ceased returning to his mother’s home after work. At the time of his death, Creal had a Missouri driver’s license and applied for a loan and car title in Missouri. He continued to receive paychecks at his mother’s home. Hawkins, representing Creal (plaintiff), filed suit in federal court asserting jurisdiction based on diversity of citizenship of the parties. Masters Farms, Inc. (defendant) moved to dismiss on the ground that there was no diversity of citizenship.

Issue:

Abstract: Does the federal district court have subject matter jurisdiction?

Specific: Were Mr. Creal and Master’s Farms Inc., “citizens of different states”?

Rule:
A person is a citizen of the state in which he is domiciled, established by physical presence in a place and the intent to remain there.

Holding:
Yes. To determine the state of which a party is a citizen, the court looks to where the party is domiciled. A person’s domicile is established by his physical presence in that state and his intent to remain there. Creal was domiciled in Kansas at the time of his death. Even though he maintained some contacts with Missouri, he had married a Kansas citizen and moved with her to a home in Kansas, bringing most of his possessions to his new home and splitting the costs of the home with his wife. Since Masters is also a Kansas citizen, there is no diversity of citizenship. Masters’ motion to dismiss is granted.

Question 18

Hawkins v. Masters Farm, Inc, relates to what concept?

Answer 18

Subject Matter Jurisdiction
- Specifically diversity jurisdiction

Question 19

What is Rule12(b)(1) Motion to Dismiss Standard?

Answer 19

Motion to dismiss for lack of subject matter jurisdiction.

(Asked the court to dismiss the case because the federal court lacked jurisdiction) - (implying that the parties are of the same state)

Question 20

The most important statutes at this point are 28 U.S.C §§1331 and 1332. Recite them and state which apply to Peters v. Dodge.

Answer 20

28 U.S.C §1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

28 U.S.C §1332: Grants subject matter jurisdiction on federal district courts in controversies between “citizens of different states.”

• 28 U.S.C §1331 applies to Peters v. Dodge because the accident occurred in Illinois, Dodge is a resident of Illinois (personal jurisdiction has power over the defendant), and Peters is considered a resident of Illinois as he has connections there (double check Peter resident of Illinois with Professor)
• Peters v. Dodge would be filed in state court in Illinois.

Question 21

Why did the plaintiff’s lose in Hawkins?

Answer 21

Because Mr. Creal (plaintiff) was not considered to be a resident of a different state at the time of death.

Question 22

Can Hawkins file this claim again in federal court? What about state court?

Answer 22

Federal Court: No

State Court: Yes. The Court held that there was no subject matter jurisdiction in federal court, but a Kansa state court of general jurisdiction would be able to hear the case.

Question 23

On the basis of cases like Hawkins, Attorney Sands decides to bring Peter’s case in federal court. Dodge is indisputably a resident of Champaign, Illinois, and thus a citizen of that state within the meaning of the statute. Where might Sands argue that Peters is domiciled to establish federal subject matter jurisdiction?

Answer 23

As Peter is a student of Michigan, he can argue that he is domicile in Michigan based on the tuition he is paying for school, his apartment in Michigan, and a W2 if he has a job while as a student.

Question 24

In Hawkins v. Masters Farm, Inc., who sued whom, where, on what claim, seeking what remedy?

Question 25

Hawkins v. Masters Farm, Inc., what question is the court deciding?

Question 26

Hawkins v. Masters Farm, Inc., on what body of law and facts does resolution of this procedural issue depend? In other words, what change in fact or law would have led to an opposite decision?

Answer 26

Refer to powepoint slides from first class

Question 27

Hawkins v. Masters Farm, Inc., who picked this fight, how did she pick it, and why did she pick it?

Answer 27

Refer to powerpoint slides from first class

Question 28

Suppose plaintiff’s lawyer in Hawkin’s had filed action in federal court without any basis for thinking that Creal a citizen of MO. Problem for the case? Any problem for the lawyer?

Question 29

How did the plaintiff’s lawyer in Bridges v. Diesel Services violate Rule 11? What happens to her as a result? Should the judge have imposed a harsher sanction?

Question 30

Describe Rule 11.

Answer 30

Sanctions are appropriate where the complaint filed is objectively unreasonable under the circumstances or where the claim asserted is patently unmeritorious or frivolous.

Question 31

Once Sands has decided where to bring the suit, she must begin the action and notify the defendant that it has begun. What is the first thing Sand must do? What are the required steps after?

Answer 31

(1) Draft a complaint. (Rule 3)
(2) Notify the defendant of the suit (Rule 4)

Question 32

Rule 4 sets forth two basic means of notice (service of process). What are they?

Answer 32

(1) Waiver of Service: Involves mailing the defendant the complaint; if the defendant agrees to waive service, the suit can proceed.
(2) Summons: private process servers or a federal marshal (used if the defendant refuses to cooperate) - the summons and complaint must be served.

Question 33

What is a Waiver of Service?

Answer 33

The defendant agrees to respond to the complaint (enter into a lawsuit) without requiring the plaintiff to serve them with a summons and complaint (petition).

Question 34

What happened in Bridges v. Diesel Service, Inc.?

Answer 34

Facts:

Bridges (plaintiff) sued Diesel Service, Inc. (Diesel) (defendant) for age discrimination under the Americans with Disabilities Act (ADA). The court dismissed Bridges’ complaint on the ground that he had not exhausted administrative remedies by first filing a complaint with the Equal Employment Opportunity Commission (EEOC). Diesel moved for Rule 11 sanctions against Bridges’ attorney.

Issue:

Whether sanctions are warranted where counsel fails to file an EEOC complaint before bringing a discrimination suit.

Rule:

Rule 11 sanctions are appropriate where the complaint filed is objectively unreasonable under the circumstances, or where the claim asserted is patently unmeritorious or frivolous.

Holding:

No. Rule 11 sanctions are appropriate only where the complaint filed is objectively unreasonable under the circumstances. An attorney certifies when he signs a complaint that the pleading is supported by a reasonable factual investigation and a normally competent level of legal research. Here, research would have revealed that filing an EEOC complaint is a condition precedent to filing a discrimination suit, making a competent level of research standard problematic. However, the primary purpose of Rule 11 is to deter improper conduct, so sanctions are appropriate only in exceptional circumstances where the claim asserted is patently unmeritorious or frivolous. In this case, monetary sanctions would not serve to deter improper conduct since Bridges’ attorney admitted his mistake and immediately filed an EEOC complaint. Sanctions are more appropriate when the mistake is substantive rather than procedural. The motion for sanctions is denied.

Question 35

In Bridges v. Diesel Service, Inc., the court concludes that the plaintiff’s counsel did not “display a competence level of legal research.” What did they do wrong? What provision of Rule 11(b) was violated?

Answer 35

The attorney should have exhausted all possible remedies before filing a complaint.

Question 36

In Bridges v. Diesel Service, Inc., the court concludes that the plaintiff’s counsel violated Rule 11 by signing and filing a complaint that was objectively unreasonable under the circumstances.” But the court nevertheless declines to impose a sanction. What aspect of Rule 11(c) gives the court this discretion?

Answer 36

Rule 11(c) primary goal for sanctions is deterrence of improper conduct. The judge found it was not necessary in this case as counsel immediately acknowledged his wrong and attempted to rectify the situation.

Question 37

What concept do Bridges v. Diesel Service, Inc., relate to?

Answer 37

Lawyers responsibility and Rule 11

Question 38

Describe the current Rule 11(C)(2) - not in effect at the time of the Bridges decision.

Answer 38

Requires a party to first serve his opponent with a motion for sanctions, then give her 21 days to fix the error. Only if the error remains uncorrected is the party allowed to provide the court with a copy of the motion.

Were this rule followed in Bridges, the court would never have known of the plaintiff’s attorney’s failure to exhaust - assuming that the plaintiff’s lawyers withdrew the complaint within 21 days.

Question 39

What happened in Bell v. Novick Transfer Co.?

Answer 39

Facts:

The Bells and their infant (plaintiffs) sued Novick Transfer Co. (Novick) (defendant) when a truck owned and operated by Novick collided with the Bells’ car, injuring the infant. Their complaint, initially filed in state court but subsequently removed to federal court, alleged that the car was being operated in a careless, reckless, and negligent manner. Novick moved to dismiss, arguing that the Bells’ declaration failed to state a claim against Novick upon which relief could be granted, alleging only that an accident occurred due to the negligence of Novick as a result of which the Bells were injured, and failing to allege the specific acts of negligence.

Issue:

Whether a party states a claim upon which relief may be granted if he states that the defendant negligently operated a truck, causing plaintiff’s injuries.

Rule:

• Rule 8: A claim upon which relief may be granted is a short and plain statement of the claim showing that the pleader is entitled to relief; (2) a party is not entitled to a more definite statement unless the facts are necessary for the party to form his response to the pleading.

Holding:

Yes. Under Fed. R. Civ. Pro. 8, only a short and plain statement of the claim showing that the pleader is entitled to relief is required. The Bells’ statement of their case satisfies this standard. Moreover, Novick is not entitled to a more definite statement. Novick could easily obtain the specific facts that formed the basis of the Bells’ claim of negligence through interrogatories or other discovery procedures, and at any rate Novick does not need this information to form its response to the pleading. The motion to dismiss is accordingly denied.

Question 40

What concept/topic does Bell v. Novick Transfer Co., relate to?

Answer 40

The Complaint

Question 41

Describe Rule 8.

Answer 41

A short and plain statement of the claim showing that the pleader is entitled to relief is required.

Question 42

Bell’s complaint may be described as what?

Answer 42

A Notice Pleading:

(Gives the defendant only a general idea of the nature of the claim)

Question 43

Once a defendant receives proper notice of the complaint, attention shifts to his ___ - the defense of the action.

Answer 43

Response

Question 44

What are the two forms of a response?

Answer 44

(1) Motion - attacking the complaint
(2) Pleading - responding to the allegations in the complaint (usually called an answer)

Question 45

If Dodge wants to make a pre-answer motion to dismiss for lack of subject matter jurisdiction, he will prepare and file a series of papers with the Court and serve them on Peters:

Answer 45

(1) A notice of the motion - which simply tells the other side that the defendant plans to make a motion, what that motion is (here, a motion to dismiss for want of subject matter jurisdiction), and the time and place at which the motion will be heard by the judge;
(2) A memorandum of points and authorities (a short brief discussing his case and the reasons the court should grant his motions)
(3) Any evidence pertinent to the motion - perhaps an affidavit (a sworn declaration) and copies of documents concerning Dodge’s and Peter’s residence and local affiliations.

Question 46

What is a Pre-Answer Motion?

Question 47

If a defendant does not make a pre-answer motion or if the court denies a pre-answer motion, the defendant must then ____.

Answer 47

Answer.

Question 48

What is the most common Pre-Answer Motions?

Answer 48

Motion to dismiss

At the early stages of litigation, there are several motions that a defendant may make to end the case or to alter its shape.

Question 49

In contrast to a pre-answer motion, _____, does respond to the allegations of the complaint, paragraph by paragraph.

Answer 49

Answer

Question 50

The defendant, in an answer, may want to assert defenses that will wholly or partially defeat the plaintiff’s claim. For example, the defendant may contend that the applicable statute of limitations has run or that the plaintiff has released her claim. These are called what?

Answer 50

Affirmative defenses

Question 51

The defendant, in an answer, may also wish to assert a claim against the plaintiff that would entitle him to relief which is called ___.

Answer 51

Counterclaim

Question 52

Dodge may want to deny certain allegations of the complaint, such as the allegation that he was negligent. He may also want to allege various _____ to Peter’s claims. For example, in such a case, it is quite common for a defendant to claim that the plaintiff’s contributory negligence was, at least in part, the cause of the accident. If Dodge was injured or his vehicle damaged in the accident, he will want to assert a ___, alleging Peter’s negligence caused injuries to Dodge, which could enable Dodge to get compensation for his injuries and property damage.

Answer 52

• Affirmative defenses
• Counterclaim

Question 53

If Dodge has a counterclaim arising from the accident, what must he do?

Answer 53

Assert it in his answer or else lose it.

Question 54

What are the following examples of?:

“The court lacks jurisdiction over the subject matter of this action because the plaintiff and defendant are not citizens of different states.”

“Defendant alleges that plaintiff drove his car carelessly and recklessly and that such careless and reckless operation was a cause of the accident.”

Answer 54

Affirmative defenses

Question 55

What would happen if the answer failed to respond to some of the allegations of the complaint? See Rule 8(b)(6)

Question 56

What is the point of stating that the defendant lacked information or belief sufficient to admit or deny some of the allegations of the complaint? See Rule8(b)(6)

Question 57

Complaints and answers are considered what?

Answer 57

Pleadings

Question 58

Rule ___ sets for the basic amendment rules and states that “the court should freely give leave [to amend] when justice so requires.

Answer 58

Rule 15

Question 59

Regarding Peters v. Dodge,

Who may be joined as a plaintiff or defendant in the lawsuit? (See Rule 20)

Who must be joined as a plaintiff or a defendant in the lawsuit? (See Rule 19)

Are there persons who are not in the lawsuit who can join as parties if they so choose? (See Rule 24)

May some of the parties in a lawsuit represent others who are not in the lawsuit, so that the final decision will determine the rights of all? (See Rule 23)

Question 60

Describe Rule 20: Joinder

Answer 60

• The joinder rules tells us how many claims and how many parties can be packaged into a single case.

Question 61

True or False:

Regarding joinder, the plaintiff has a choice of whom to join as a co-plaintiff as well as whom to join as codefendants.

Answer 61

True

Question 62

What happened in Fisher v. Ciba Specialty Chemicals Corp.?

Answer 62

Facts:

Jessie Fisher, Arlean Reed, Barbara Byrd, Ronald McIntyre, and Sharon Greer (plaintiffs) sued current and former owners of Ciba Specialty Chemicals Corporation (Ciba) (defendants), alleging that DDT from Ciba’s plant contaminated their individual properties. The plaintiffs initially sought class action status, but the court denied certification on the ground that common questions did not predominate over individualized ones, among others. Contending that a single trial would be inefficient and prejudicial to them, the defendants moved to sever the plaintiffs’ claims into five separate trials. The case involved a mix of common and individualized evidence. The same nine expert witnesses would likely be called to testify with respect to each of the plaintiffs’ claims, however, and the experts all lived out of state. The district court considered the defendants’ motion.

Issue:

Is the severance of a multi-plaintiff lawsuit into individual trials warranted under the Federal Rules of Civil Procedure if a single trial will be more efficient than multiple trials, the parties’ claims and defenses arise from the same transaction, and any potential prejudice to the defendants can be averted by appropriate jury instructions?

Rule:

The severance of a multi-plaintiff lawsuit into individual trials is not warranted under the Federal Rules of Civil Procedure if a single trial will be more efficient than multiple trials, the parties’ claims and defenses arise from the same transaction, and any potential prejudice to the defendants can be averted by appropriate jury instructions.

Holding:

No. Federal Rules of Civil Procedure (FRCP) 20(b) and 21 permit trial courts, at their discretion, to split a multi-plaintiff lawsuit into separate trials if a single trial would cause delay or prejudice. In considering a motion to sever, relevant factors include: (1) whether the claims arise out of the same transaction or occurrence, (2) whether the claims involve common issues of fact or law, (3) the effect on judicial resources, and (4) to what extent the court’s grant or denial would prejudice each side. Here, the defendants’ arguments for severance are not persuasive. First, the plaintiffs’ claims fundamentally arise out of the same transaction. The term “transaction” is liberally construed to encompass a series of events that are logically related. The plaintiffs’ claims meet that standard, because they all derive from alleged emanations of DDT from the same source. Accordingly, there is a fundamental core of legal and factual issues common to all of the plaintiffs’ claims. It would be inefficient to require such issues to be heard repeatedly in trial after trial. That the plaintiffs were denied class certification does not prove that their claims lack commonality, because the standard for achieving certification is higher than the standard for joinder of different plaintiffs’ claims. Even though the plaintiffs’ claims involve individualized evidence, that fact alone is insufficient to warrant severing the case. Nine expert witnesses, all of whom live out of state, will likely be called to testify with respect to each plaintiff. Requiring those witnesses to return on five separate occasions would be inefficient and potentially cost-prohibitive. As for any potential prejudice to the defendants from a single trial—e.g., jury confusion or the possibility of stronger claims “taint[ing]” weaker ones—such concerns can be addressed through a carefully crafted jury instructions. Federal juries have proven amply capable of individually considering multiple claims lodged by multiple plaintiffs. In sum, severance would create a substantial burden upon the parties, and that outweighs the inefficiency of a single trial. Accordingly, the defendants’ motion is denied.

Question 63

What topic/concept does Fisher v. Ciba relate to?