Civil Procedure – Spring 2000 – U of Iowa – Prof. Wetlaufer

I.                   Overview

A.               Questions and systems comprising Civ Pro

1.                Jurisdiction - power of particular courts

2.                Pleadings - how to start a lawsuit

a)                Fed. rules lax as to how much detail is necessary to state a claim (see Bell)

b)                Fed. rules liberal as to amendments

3.                Mechanisms for dispostion - how to stop a lawsuit.

a)                Summary judgement should be awarded if essential element of prima facie case isn’t offered (e.g. Houchens - insurance beneficary cannot prove cause of husband’s death)

4.                Joinder - Parties and claims that may or must be joined in a particular lawsuit.

a)                Permissive - party/claim may be joined (e.g. Temple - manucturer and hospital do not have to be joined where separate lawsuits would suffice as well)

b)                Compulsory  - parties/claims must be joined or something is forfeited (e.g. Rush - failure to sue for property damage and personal injury at same time precludes suit for injuries).

5.                Discovery - getting needed info; keeping others from getting theirs

a)                If info. might reasonably lead to relevant fact, it must be turned over if not priviliged. (Goldinger). 

b)                discovery decisions that are not final (don’t end lawsuit) are interlocutory (can’t be immediately appealed).  (Apex)

c)                Means of discovery (CB 35)

(1)             Disclosure

(2)             Oral deposition

(3)             Written interogatories

(4)             Inspection of documents

(5)             Physical/Mental examinations

6.                Supervision and Finality - relations between/among juries, diff’t courts. 

a)                standards of review.

(1)             de novo - no deference.  Supervisor asks exact same question as supervisee asks, substiutes supervisor’s judgement.  Situations in which de novo occurs

(a)             Jury unreasonable

(b)             Judge clearly erroneous-fact finding must be wrong

(c)             Judge abuses discretion (e.g. Norton - judge should have let jury verdict stand).

(2)              standard for directed verdict and j.n.o.v the same, j.n.o.v. preferred for administrative reasons.

b)                Finality

(1)              Res Judicata (claim preclusion) - claim may not be re-adjudicated.  May even apply to claims in which jurisdiction is raised but  issue was fully litigated in prior lawsuit (Durfee).

(2)              collateral estoppel (issue preclusion) - issue may not be retried

(3)              stare decisis - once law is decided, it will stand in jurisdiction.  This is not so true for discovery rulings.

(4)              Deferential review - Tr. Cts. generally not overturned.

B.               4 sources of procedural law

1.                U.S. constitution

2.                State laws

3.                Common law of federal courts

4.                Federal Rules of Civil Procedure

C.               Interests to be served

1.                substantive justice

2.                equality - even playing field

3.                efficiency - minimizing litigation costs.

4.                closure - bringing conflicts to an end

5.                community solidarity - loser satisfied w/ process

6.                Incentives for lawyers to:

a)                actually discharge responsibilities and perform duties assigned to them as advocates

b)                play by rules and exercise restraint

D.               5 requirements to initiate lawsuits

1.                Personal Jurisdiction - ct. has power over D

a)                Domicile=Citizenship=Residence+Intent to remain indefinately. (Applies to SMJ as well).

b)                PJ of fed. ct. w/i given state is same as state ct. in in same state.

2.                Subject matter jurisdiction - ct. has power of claim.  Law of Fed. SMJ:

a)                U.S. Const. Art. III Sec. 2

(1)             All cases arising under Const., Laws of U.S., and treaties made under fed. authority.  28 USC 1331

(2)             Cases involving diversity of citizenship.  28 USC 1332

3.                Venue. 

a)                See 28 USC 1391(a) regarding diversity-only jurisdiction

(1)             where any D resides, if all Ds in same state; or

(2)             where substanital part of events took place, or affected property subsists; or

(3)             where any D is subject to PJ, if no other district is available

b)                See 28 USC 1391(b) regarding ~diversity-only jurisdiction

(1)             where any D resides, if all Ds in same state; or

(2)             where substanital part of events took place, or affected property subsists; or

(3)             where any D may be found, if no other district is available.

4.                Service

5.                Notice

E.               Adversarial system - see Ch. X. handbook; handout

II.                Claims and Parties in Federal Courts

A.               Remedies

1.                Substitutionary remedies - money damages.  Most common. 

2.                Specific remedies - restore directly and specifically what D has taken from P

3.                Equitable relief - historically granted by Chancellor.  Not  necessarily specific, but can be substitionary.   Courts may prefer legal relief over equity (CB 320).   Various types:

a)                Injunction

b)                Constructive trust

c)                recession/cancellation/reformation of K

d)                accounting

e)                quiet title

4.                Liquidated damages - predetermined by parties. May only be agreed to if actual damages are difficult to calculate

5.                Punitive damages - specifically designed to punish defendant for wrongful behavior.  In some jurisdicitons, evidence of P’s net worth can be introduced to determine appropriate punishment.

6.                Declatory relief - sought by party w/ problem that be solved by litigation.  Limited to real cases.

7.                Financing cases

a)                American Rule - Each party pays its own legal fees

b)                English Rule - Loser pays all legal fees.

8.                Provisional remedies - temporary order pending outcome of case.  Must comply w/ due process.

B.               Personal Jurisdiction

1.                General notes

a)                PJ based on two grounds:  State statute and Consitutional Due Process

b)                PJ requires:

(1)             [Constitutional] statutory grant and (consent or waiver or domicile or incorporation in forum state or presence); or

(2)             General jurisdiction; or

(3)             Specific jurisdiction

c)                Whether to challenge PJ is difficult decision:

(1)             If D appears, raises PJ issue, and loses, PJ applies

(2)             If D appears, doesn’t raise PJ issue (waiver), PJ applies

(3)             If D doesn’t appear, default judgement entered.  Collateral attack can succeed only if 2nd Ct. finds 1st. Ct. had no PJ.

2.                Pennoyer (CB 73)

a)                Perhaps no longer good law.  Applies to in rem jurisdiction (power over action the thing).

(1)             To achive jurisdiction, property had to be seized before lawsuit

(2)             Certain intangibles may be seized in rem (i.e. debts, marriages)

b)                Factors considered

(1)             sovereignty

(2)             territory

(3)             power

(4)             prescence

3.                Int’l Shoe (CB 91) regime

a)                Establishes mininum contacts rule for suits in personum (power over person).  (study examples from class/cases).

(1)             General Jurisdiction - D has so many systematic and continuous contacts w/ forum state that D can be sued over any matter there.

(2)             Specific Jurisdiction - D has a certain mininum amount of contact w/ forum state (no-name line) and the cause of action arises out of those contacts

(3)             Variables to consider

(a)             Reciprocity - if D substantially avails himself of benefits of forum state’s laws, PJ may be present.

(b)             Forseeability of ameniablility to suit

(c)             purposeful availment

b)                In Schaeffer (CB 102), mininum contacts rule became applicable to quasi in-rem proceedings, and possibly all in-rem proceedings.  Also applies to individuals as well as corporations.

c)                Exceptions to PJ even where mininum contacts are established:  lack of “fair play and substantial justice”

(1)             Extreme inconvience to D may bar PJ (Asahi dicta)

(2)             Court not likely to permit default machine (Burger King dicta)

(3)             Contacts obtained by fraud/misrepresentation do not count

4.                Other rules of PJ

a)                Service of process while person is in forum state will generally result in PJ (Burnham).  Exceptions:

(1)             prescence gained through fraud

(2)             D in forum state for unrelated judicial purpose.

b)                Consent is a substitute for power

(1)             Waiver (e.g., CBC -  party refuses to turn over evidence related to jurisdiction during discovery is subject to PJ)

(2)             Express (e.g. Carnival Cruiselines - Forum selection clause is valid given sufficient notice w/o bad faith/fraud).

C.               Notice

1.                Rules

a)                required for persons being sued in personum

b)                required for persons whose property interest may be affected by judicial settlement (Mullane).  14th amendment due process rights are concerned

c)                Notice must be reasonably caluclated to actually reach the person(s) sought to be informed

(1)             does not have to be an impractical burden

(2)             actual personal service is always sufficient, but not always necessary

(3)             If multiple parties are affected by proceeding, notice need only be certain to reach bulk of them, but not necessarily all (Mullane).

(4)             actual knowledge not necessarily sufficient

d)                Formal service of process sometimes required but can be waived (study CB 181-86, and appropriate rules).

D.               Self-imposed restraints

1.                Long arm statutes - state/federal laws which limit PJ to Ds w/i and perhaps below const. limits.  If long-arm jurisdiction is not satisfied, const. issue is not addressed (e.g. Crocker - Mass. law does not allow for jurisdiction over foreign D, so case ends)

2.                Venue (see 28 U.S.C. 1391, 1392)

3.                Transfer - Court may move case to diff’t district for reasons of convenience (see 28 U.S.C. 1404)

4.                Forum Non Conveniens - court may dismiss suit because there is a better forum available (e.g. Piper Aircraft - suit involving foreign Ps, foreign accident dismissed because Scotland would be a more convenient forum.  Had alternative forum offered virtually no prospect of remedy, decision may have been diff’t).

E.               Subject Matter Jurisdiction

1.                Well-pleaded complaint rule - if non-diverse P’s complaint does not state a cause of action arising from a federal question, Fed. Cts. do not have original jurisdiction (Mottley).  That comlaint anticipates a defense based on federal law is irrelevent (Id.).

2.                Federal SMJ cannot be waived for defense purposes.  It can be asserted anytime, and even the court must invoke dismissal w/o action by either party, even if SMJ issue is not discovered until appellate stage.  (Sua Sponte dismissal).

3.                Federal question jurisdiction and diversity jurisdiction are both statutory.

4.                Rule of Complete Diversity - 28 U.S.C. 1332 should be interpreted to mean that every plaintiff must be diverse from every defendant (Strawbridge).

5.                The domicile of a woman for purposes of SMJ is not tied to the citizenship of her husband (Mas).

6.                Determining Diversity

a)                Corporations are citizens of both charter state and state that is main place of business.

b)                Every member of unincorporated assoc. must be diverse from every member of other party.

c)                For class actions, diversity looks only to named parties.

d)                Amount in controversy must be at least $75, 000 (CB 231-32)

(1)             amt. stated in pleading generally controls.  To dismiss for lack of SMJ, court must be certain that amt. claimed will not be obtained.

(2)             P’s w/ separate and distinct claims may not aggregate to reach jurisdictional amount, even if one P meets threshold alone.

(3)             In class action, class representative must satisfy jurisdicitional amt.

(4)             compulsory counterclaims will be heard regardless of amt., but permissive counterclaims must have independant jurisdictional basis.

7.                Suplemental Jurisdiction

a)                Pendant jurisdiction may be sought by P; ancillary jurisdiction may be sought by others.

b)                If a case involves both federal and state claims that arise from a common nucleus of operative fact (CNOF), the state claim may be joined with the federal claim in federal court

(1)             fed. question has to be substantial

(2)             charges have to be such that they would normally be brought together.

(3)             fed. ct. has discretion whether to grant pendant jurisdiction.

(4)             If original claim is based solely on diversity, P may not exercise supplemental jurisdiction over claims/parties that are joined are not diverse (28 U.S.C. 1367) (Unless of course fed. question is involved)

8.                Removal

a)                may be done only on initiative of D

b)                possible only if original cause of action could have been brought in fed. ct.

c)                If D resides in forum state, case cannot be removed to fed. ct.

d)                notice for removal must be filed w/i 30 days.

e)                If state claims substantially predominate, remand may be called for (Williams)

f)                  If case is improperly removed, it should be remanded, not dismissed, if no final decision has been made (Powell).

F.                Parties, Claims, and Joinder

1.                Aggregation of multiple claims by P

a)                Judge may sever claims under rule 42 (b)

b)                No compulsory joinder of claims, but res judicata principles encourage P to do so anyway (see Rush)

c)                P may join any and all claims against given D, so long as all are jurisdictional. Rule 18 (a)

2.                Counterclaims by D

a)                adding counterclaim may be used as leverage for settlement.

b)                relatedness of claims is what gives rise to compulsion (e.g. STO, CNOF, “logical relation”).  Supp. jurisdiction covers compulsory counterclaims if necessary.

c)                failure to bring compulsory counterclaim results in forfeiture by res judicata.

d)                permissive counterclaim cannot be added if there is no independant jurisdictional ground.

3.                Cross-claims by D are permissive.  Rule 13(g)

4.                P’s right to assemble multiple P’s or D’s

a)                Such joinder may be crucial to economic viability of lawsuit.

b)                Tr. Ct. has discretion to sever trials.  Rules 20 (b) and 42 (b)

c)                Joinder decided on case-by-case basis

(1)             Prerequisites for joinder of parties are:

(a)             STOSTO, but Absolute identity of claims not necessary (e.g. Mosely - claims arose from separate events but were all based on same discriminatory policy); and

(b)             CQ , but not all questions must be common

5.                Third party claims by D

a)                third party claim appropriate only where third party would be secondarily or derivatively liable to D in event D is held liable to P (Watergate).  D may not claim 3PD is responsible instead of D (Id.).

b)                Derivitive liablility includes right to contribution.

6.                P’s complusory joinder of certain parties.

a)                “Plaintiff autonomy” lurks in background - people should have right not to sue or to manage their own litigation.

b)                typical situations in which compulsory jonder of parties takes place:

(1)             suit involves rights/liabilities that are joint;

(2)             two or more parties are claiming the same property;

(3)             granting relief to one party would necessarily affect the rights of another party.

c)                If party should be joined if feasible, but cannot in fact be joined, suit may go on nonetheless if adverse practical effects are not too great (Helzberg’s)

7.                Intervention

a)                Intervenor is under no complusion to intervene.  Rule 24(a)

b)                Intervention compulsory as to Court when:

(1)             application is timely; and

(2)             statute grants right to intervene; or

(3)             interest of party is practically impaired and not adequetly represented by current parties to suit.

c)                Intervention is permissive as to Court when:

(1)             application is timely; and

(2)             statute grants conditional right to intervene; or

(3)             CQ is presented

d)                Lack of identity between interest of intervenor and current parties give rise to assumption of inadequate protection

e)                Burden of proving inadequacy of representation is on intervenor but burden is minimal (NRDC)

8.                Interpleader

a)                Two types C.B 959

(1)             Statutory interpleader 28 U.S.C. 1335

(a)             minimal diversity - SMJ if any two claiments are of diverse citizenship

(b)             amt. in controversy need only be $500 mininum.

(c)             service may be made nationwide.

(2)             Rule 22 interpleader (used when stakeholder is citizen of one state and all claiments are citizens of one other state)

(a)             complete diversity required, as is $75,000 threshold.

(3)             PJ is limited to state long-arm statutes.

G.              Choice of Law

1.                The Erie Doctrine

a)                Interprets “laws of the several states” in Fed. Judiciary Act of 1789 [currently 28 USC 1652] to apply to judge-made law as well as statutory law.  Result is that there is no federal general common law.  State common law will be applied to diversity cases.

b)                Swift expressly overruled because of unworkable and unconstitional problems it created.

c)                It is unclear whether Congress can give fed cts. the power to use general common law.  Erie opinion suggests not.

2.                Distinction made between substance and procedure is not the normal distinction.  The intent of Erie, no