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2008F Goldberg CivPro Outline

2008F Goldberg CivPro Outline

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Published by amu21092524
Fall 2008 Civil Procedure with Prof. S. Goldberg OUTLINE
Fall 2008 Civil Procedure with Prof. S. Goldberg OUTLINE

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Published by: amu21092524 on Jan 05, 2009
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10/25/2012

 
O
UTLINE
 
OF
A C
IVIL
A
CTION
 
0.
P
RE
-L
ITIGATION
C
ONSIDERATIONS
1.Does the law furnish relief for this grievance?2.What is the probability of winning?3.Is it worth the time, effort and expense vs. alternatives: settlement, arbitration, self-help, forgetting about it
1.
S
ELECTING
 
A
P
ROPER 
C
OURT
1.Personal Jurisdiction2.Subject Matter Jurisdictioni.Federal: More than $75,0001.General2.Diversity3.Supplemental Jurisdiction4.Removal5.Venue
2.
F
EDERAL
 
OR 
S
TATE
J
URISDICTION
: E
RIE
3.
P
RE
-J
UDGMENT
(P
ROVISIONAL
)
RELIEF
4.
C
OMMENCING
 
THE
A
CTION
1.Service: reasonably calculated to bring the action to the defendant’s notice
5.
P
LEADING
 
AND
P
ARTIES
1.Complaint: Three objectives regarding level of detail:i.Identifying and separating the legal and factual contentions, limit unnecessary litigation on agreed upon elements (may be too binding)ii.Establish in advance what a party proposes to prove at at trial (again, too binding)iii.General notice of contentions, cut down on ‘surprise’ litigation (notice pleading)
6.
T
HE
ESPONSE
1.12(b) Motions to Dismissi.12(b)(6) Failure to state a claim or cause of action1.Law clearly furnishes no redress for this injury (i.e. frowning at me)2.P failed to include an essential allegation (i.e. that the D was the employer of the person who injured me)3.Too general, notice not adequate2.Answei.Admit or denyii.Affirmative Defensesiii.Counterclaims (must be answered by P)iv.Implead
7.
D
ISCOVERY
1.Depositions2.Written Interrogatories3.Production of Documents4.Requests for Admissions5.Physical Examinations
8.
S
UMMARY
J
UDGMENT
9.
T
HE
J
URY
 
1.
7
th
Amendment Right to Jury2.Selectioni.Challenge for Causeii.Peremptory challenge
10.
T
HE
T
RIAL
1.Directed Verdict/JML (after P rests)
11.
S
UBMITTING
 
THE
 
CASE
 
TO
 
THE
J
URY
1.General verdict/General verdict with interrogatories/special verdict
12.
P
OST
-T
RIAL
 
MOTIONS
1.JNOV2.Motion for a New Trial
13.
T
HE
J
UDGMENT
 
AND
I
TS
E
 NFORCEMENT
1.Injunction2.Contempt3.Costs
14.
A
PPEAL
15.
C
ONCLUSIVENESS
 
OF
J
UDGMENTS
1.Res Judicata2.Collateral Estoppel
Goldberg’s Civil Procedure page 1 of 30ish
 
1
1.S
ELECTING
A P
ROPER 
C
OURT
 
Traditional View:
 Pennoyer v. Neff 
[612]
The
 Pennoyer 
physical presence rule [612] : Exclusive jurisdiction within state, none without. However,in order to protect its own citizens, a state may exercise jurisdiction over a diverse defendant if he is
personally
 
served
(
notice
by attachment sufficient) or he
voluntarily appeared
. (Dicta: 14
th
Amend)
Constitutional Basis:
14
th
Amendment Due Process Requirement:
Notice
and
opportunity to be heard
Article IV, §1 Full Faith and Credit Clause: to judgments in other states
1.Personal Jurisdiction
 
[12(b)]
[1]
 
Is there a state Long Arm Statue authorizing jurisdiction?
 
Blanket
(to the extent of the 14
th
Amendment:California) or 
Enumerated
(Specific instances: Massachusetts) follow in the most liberal sense, limit down with [2]
Rule 4(k)(1)(A)
Follow local state long-arm statute
o
EXCEPTIONS:
(1)(B)
Service is within 100 miles of court (Bulge)
(1)(C)
 Nationwide service when authorized by federal statute
(2)
Extends federal power to its outermost constitutional limits in federal claims (ie foreign corporatedefendants: Claim must arise under federal law(a) D must be beyond jurisdiction of any one state(b) National contact must be substantial enough not to violate D’s constitutional rights.)
[2] Is it within constitutional limits?
ANY of the following:
Domicile
within state
Consent
:
o
Expressly
in contract
Carnival Cruise Lines , Inc. v. Shute
(No evidence of bad faith in forum selectionclause, so it holds) [736]. Stevens’ Dissent: Adhesion contract not fair.
Considerations. See
 Burger King 
Prior negotiations
Contemplated future consequences
Terms of contract
Course of dealing
o
Implied
 
 Hessv. Pawloski
(Motor vehicle out of state drivers appoint their state’s registrar as their representative. Service upon registrar is sufficient notice) [623]
Regulation reasonably calculated to protect public interest
State has power to exclude, and condition, use of highway
 Not hostile but attempts to guarantee equal footing
Physical
Presence in state
o
Tag
 
Jurisdiction
: Personal Service within jurisdiction. See
  Burnham v. Superior Court of California
(Ex-Husband served in divorce case while visiting kids. C dan serve within state, even if D is in stateon unrelated business) [710].
SCALIA (Majority): Predictability of pedigree, lack of litigation against
Can attach debt once establish
in personum
jurisdiction. See
 Harrisv. Balk 
[620].
BRENNAN: Look at general fairness factors, not just history.
Minimum Contacts:
 
 International Shoev. Washington
(Diverse company with systemic and continuousGoldberg’s Civil Procedure page 1 of 30ish

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