Hart - CivilProcedure - Spring 2005 - Rule Outline

Hart - CivilProcedure - Spring 2005 - Rule Outline - A...

Info iconThis preview shows pages 1–2. Sign up to view the full content.

View Full Document Right Arrow Icon
A Civil Action: use for - Impleader, discovery Most Important Rule of Civil Procedure: you cannot be bound by a decision to a suit to which you were not a party. *In diversity case in Federal Ct you apply state substantive law STANDARDS OF REVIEW (also on pg 21) Qs of law reviewed de novo Qs of fact reviewed by clearly erroneous standard (unusual to have reversals under this) For procedural things are reviewed under abusive of discretion standard (just like clearly erroneous) Allocating the Elements Which party has the burden of pleading, producing evidence, or proving a particular element of a claim? burden of pleading – alleging the element of the claim or defense burden of persuasion (proof) – persuading the trier of fact that one’s version of the facts is more likely than not (over 50%) to be true (civil) / beyond a reasonable doubt (criminal) burden of production – providing evidence (trial device issue), the burden to say something (ex: if there are allegations against you, and you never say anything, then the P wins – you have to say something to keep the train of litigation/the case moving) **Usually the first two go together 3 ways that change who has the burden of pleading 1. Persons shall be liable for injuries to others caused by failure to take reasonable care. [burden on the P here] This provision does not permit the award of damages to persons whose injuries were caused in whole or in part by their own negligence. 2. Persons shall be liable for injuries to others caused by failure to take reasonable care; provided that no person shall be liable if the Ps own neg was the primary cause of the injury. [semicolon matters, “shall” language (common with burden on D)] 3. A person who is not himself neg, but who is injured by the neg of another has a cause of action against the injurer [ Burden will always be on the P for the elements of the cause of action. Negligence cause of actions have burden on P. Most states put burden of neg on P and burden of contributory neg on the D. Rule 12 Motions rule 12 motions must all be brought at once you can bring up failure to joint an indispensable party lack of subject matter jurisdiction can come up at any time 12(b)(6) – either there is no basis for legal argument (clothes you wear) or there are 3 elements to a complaint and you only pled 2 of them 12(b)(6) can become 12(c) can become motion for sum jud St of Lim has to be in the answer, then the D would file 12(c) __________________________________________________________________________________ JOINDER OF CLAIMS, REMEDIES, AND PARTIES Joinder of Claims and Remedies: Rule 18 – you can add anything you want and you don’t have to add anything – Can join as many claims as you want against the same party. Don’t have to be related at all, unless they will not have subject matter jurisdiction. Doesn’t say you must bring all related claims, but future claims may be precluded if not brought now. a single P can join any and all claims he has against a single D
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Image of page 2
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 02/12/2008 for the course LAW 5303 taught by Professor Krakoff during the Spring '05 term at Colorado.

Page1 / 27

Hart - CivilProcedure - Spring 2005 - Rule Outline - A...

This preview shows document pages 1 - 2. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online