University of Szeged Civil Procedure

1. University of SzegedCivil Procedure Ken Kilbert Associate Professor University of Toledo College of Law American Law Program

2. Federal Court System District Courts Courts of Appeals Supreme Court

3. Art. III, � 2 � Types of Cases Cases �arising under� Constitution, laws of the U.S. and treaties Cases affecting ambassadors & foreign officials Admiralty & maritime cases Cases involving U.S. as party Cases between states (or state v. citizen) Cases between citizens of different states Cases between citizens of same state claiming lands under grants of different states Cases between state/citizen & foreign nation/citizen

4. Federal Question Jurisdiction Art. III, � 2 � �The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties �� 28 USC � 1331 � �The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.�

5. Well Pleaded Complaint Federal question must appear on face of complaint and be essential to P�s cause of action Defense Counterclaim Removal

6. Diversity Jurisdiction Art. III, � 2 � Extends judicial power to cases � �between citizens of different states� 28 USC � 1332 Amount in controversy exceeds $75,000 Between citizens of different states

7. Corporate Citizenship For diversity purposes per 28 USC � 1332(c)(1), corporation is citizen of: 1) State in which incorporated, and 2) State where has �principal place of business�

8. Amount in Controversy Damages Legal certainty test Timing Injunctive relief Value to P or D?

9. Aggregation 1P v. 1D � All claims aggregated Multiple Ps � Aggregate claims where Ps have single right or common undivided interest Multiple Ds � Aggregate claims where Ds have common and undivided liability

10. Removal - 28 USC � 1441 �(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a state court of which the district courts of the U.S. have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the U.S. for the district and division embracing the place where such action is pending.�

11. Supplemental Jurisdiction Court has jurisdiction over one claim, and extends jurisdiction to an otherwise jurisdictionally insufficient claim By plaintiff = Pendent By defendant = Ancillary

12. Supplemental Jurisdiction28 USC � 1367 Power to exercise supplemental jurisdiction over insufficient claim Limits on power to exert supplemental jurisdiction where anchor claim is based on diversity Discretion to decline supplemental jurisdiction

13. Venue � 28 USC � 1391 Diversity jurisdiction If all Ds reside in same state, any district where one D resides Where substantial part of events or omissions giving rise to claim occurred Not diversity jurisdiction Same as (a) above c. D is corporation d. D is alien

14. Fed. R. Civ. P. 8(a) A pleading that states a claim for relief must contain: Short & plain statement of grounds for court�s jurisdiction Short & plain statement of the claim showing P is entitled to relief Demand for relief sought

15. Ashcroft v. Iqbal Process for evaluating whether complaint satisfies Rule 8 standard: Accept as true all factual allegations (not legal conclusions) Factual allegations must state plausible claim for relief (not mere possibility of entitlement)

16. Defendant�s Response Answer Rule 8 (b) denials Rule 8 (c) affirmative defenses Preliminary Motion Rule 12 (b) Rule 12 (c), (e), (f)

17. Fed. R. Civ. P. 11 Subject to sanctions, attorney certifies pleading or motion: Not for improper purpose Legal contentions warranted by existing law or non-frivolous argument for change Factual allegations likely to have evidentiary support Denials of fact warranted

18. Fed R. Civ. P. 13 Counterclaim (D v. P) Compulsory: Rule 13(a) Permissive: Rule 13(b) Crossclaim (D1 v. D2) Rule 13(g)

19. Amendments � Rule 15 Certain early amendments are automatically allowed Others �freely given� unless �undue prejudice� Relation back Statute of limitations

20. Joinder of Parties Rule 20 Permissive Joinder Arise out of same transaction or occurrence Rule 19 Compulsory Joinder Necessary party � must be joined, if feasible Indispensable party � case must be dismissed, if cannot be joined

21. Impleader or Interpleader? Impleader Defendant joins Third-party defendant Rule 14 Interpleader Stakeholder joins multiple persons who have claim Rule 22, 28 USC � 1335

22. Class Actions � Rule 23 Must meet all four (a) prerequisites 1. Class so numerous that joinder of all impracticable 2. Questions of law or fact common to class 3. Claims of reps typical of class 4. Reps will fairly/adequately protect class interests Must meet one of (b) criteria 1. Separate actions would (a) risk inconsistent adjudications, or (b) impair interests of non-parties 2. Relief appropriate for entire class 3. Common questions of law or fact predominate

23. Discovery Methods Required Disclosures (Rule 26(a)) Depositions (Rule 30) Interrogatories (Rule 33) Requests for Production (Rule 34) Physical & Mental Exams (Rule 35) Requests for Admissions (Rule 36)

24. Scope of DiscoveryRule 26(b)(1) �[A]ny non-privileged matter that is relevant to any party�s claim or defense� Need not be admissible at trial; just needs to be �reasonably calculated to lead to the discovery of admissible evidence�

25. Work Product PrivilegeRule 26(b)(3) Qualified privilege for document prepared in anticipation of litigation: discoverable only if party has substantial need to prepare its case and is unable without undue hardship to obtain substantial equivalent Virtually absolute privilege for mental impressions or opinions

26. Expert Witness TESTIFYING Must provide report: Rule 26(a)(2) May be deposed: Rule 26(b)(4) NON-TESTIFYING Discovery prohibited, absent �exceptional circumstances� : Rule 26(b)(4)

27. Enforcement of Discovery Motion To Compel � Rule 37 Protective Order -- Rule 26(c) Sanctions � Rule 37

28. Summary Judgment � Rule 56 Motion made after pleadings, before trial Judgment granted where there is �no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law�

29. Seventh Amendment �In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved �.� U.S. Const. amend VII

30. Types of Judgments/Relief Money Damages Compensatory & Punitive Equitable Relief Preliminary Injunction, Rule 65 Declaratory Relief 28 USC � 2201, Rule 57 Costs & Attorney Fees English & American Rules

31. Preclusive Effects of Judgments Res Judicata � Claim preclusion Collateral Estoppel � Issue preclusion

32. Alternative Dispute Resolution Mini-trial Mediation Arbitration

33. Personal Jurisdiction:Traditional Bases Citizen of forum state Served while present in forum state Consent

34. International Shoe Out-of-state corporation is subject to personal jurisdiction, consistent with due process, if has �minimum contacts� with forum state such that maintenance of suit does not offend traditional notions of fair play and justice

35. Specific & General Jurisdiction Specific � for suits arising from D�s contacts with forum state Minimum contacts General � for any suits, regardless whether arise from D�s contacts with forum state Systematic & continuous contacts

36. Fair & Just Factors Burden on D Forum state�s interest P�s interest Judicial system�s interest States� shared interest

37. Evaluating Personal Jurisdiction Over Non-Resident State long-arm statute Due Process Minimum contacts Fair & just

38. Minimum Contacts Stream of commerce Intentional torts Contracts Internet

39. Fed. R. Civ. P. 4(k)Territorial Limits of Effective Service 1(A) State long-arm statute 1(B) 100 mile �bulge� service 1(C) Federal long-arm statute 2 Federal question case, where foreign D is not subject to P.J. in any state court, but due process allows suit in U.S.

40. Full Faith & Credit �Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.� U.S. Const. art. IV, � 1