Transcript Monday, Aug. 27

Tuesday, Aug. 26
Civil Procedure
Law 102
Section 1
Michael Green
Office: 260
Office Hours: ?
review sessions
W 2-3?
W 3-4?
F afternoon?
Field, Kaplan and Clermont, Civil
Procedure - Materials for a Basic
Course, Concise 10th edition (2011)
Glannon, Examples &
Explanations: Civil Procedure, 7th
edition (2013)
http://msgre2.people.wm.edu/civpro.htm
No laptops!
1) Brief description of subject
matter of course
a) why does Civ Pro seem to hard?
b) three main themes in course
c) quick overview of a civil suit
2) Pleading: Drafting a Complaint
What is civil procedure?
procedure v. substance
civil v. criminal
sounds more boring than it is...
sounds more interesting than it
is...
Why is civil procedure so hard?
not familiar with activity being legally
regulated
interdependencies
regulatory/statutory
dynamic
structure of legal system is central
federal vs. state
state vs. state (e.g California vs.
New York)
Constitutional Law
Statutory Law
Fed. R. Civ. P.
Common Law
U.S. Const. Amendment V.
No person shall . . . be deprived of
life, liberty, or property, without
due process of law . . .
28 U.S.C. §1332. - Diversity of citizenship; amount in
controversy; costs
(a) The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state,
except that the district courts shall not have original jurisdiction
under this subsection of an action between citizens of a State
and citizens or subjects of a foreign state who are lawfully
admitted for permanent residence in the United States and are
domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of
a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as
plaintiff and citizens of a State or of different States.
Fed. R. Civ. P. 4. Summons
...
(e) Serving an Individual Within a Judicial District of the United States.
Unless federal law provides otherwise, an individual — other than a minor, an
incompetent person, or a person whose waiver has been filed — may be served
in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law
to receive service of process....
Why is civil procedure so
important?
“I'll let you write the
substance...you let me write the
procedure, and I'll screw you
every time.”
Rep. John Dingell, Jr.
three themes
Balance:
1) upholding the substantive rule of
law
2) other interests (e.g. party autonomy
and privacy)
and
3) efficiency
structure of American legal system
statutory interpretation
Pleading Period
Discovery Period
Trial
Appeal
starting a lawsuit
Structure of Court Systems
Federal Court System
• U.S. Supreme Court
• U.S. Court of Appeals
– E.g. 3rd Circuit
• U.S. District Court
– E.g. E.D. Pa.
Virginia Court System
• Virginia Supreme Court
• Court of Appeal
• Circuit Court (also
General District Court)
drafting a complaint
http://msgre2.people.wm.edu/Form11.pdf
Rule 10. Form of Pleadings
Caption; Names of Parties. Every pleading
must have a caption with the court’s
name, a title, a file number, and a Rule
7(a) designation. The title of the complaint
must name all the parties; the title of
other pleadings, after naming the first
party on each side, may refer generally to
other parties.
-
Rule 8. General Rules of Pleading
(a) Claim for Relief. A pleading that states a claim
for relief must contain:
(1) a short and plain statement of the grounds for
the court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new
jurisdictional support;
(2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may
include relief in the alternative or different types of
relief.
Rule 10(b)
Paragraphs; Separate Statements. A party must
state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a
single set of circumstances. A later pleading may
refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each
claim founded on a separate transaction or
occurrence — and each defense other than a
denial — must be stated in a separate count or
defense.
Three things that can be wrong with a
complaint:
1) legal sufficiency of factual
allegations
2) level of specificity in factual
allegations
3) evidentiary support for factual
allegations
legal sufficiency of factual
allegations
do they state a claim?
D had a duty of a care for P
D breached the duty
P suffered damages
D’s breach was cause of P’s
damages
P alleges that D drove 100 mph
through stop sign, causing an accident
resulting in damages to P
Does P’s complaint fail to state a claim
because P fails to mention that he too
drove 100 mph through the stop sign
and that had he not done so there
would have been no accident?
affirmative defense