Civ Pro - Outline

Civ Pro - Outline - Civil Procedure Outline Bassett Fall...

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Civil Procedure Outline – Bassett – Fall 2007 I. Overview - The Stages of a Civil Suit A. The Pre-Litigation Phase of a Civil Dispute – before suit can be brought, we must seek an attorney and establish the attorney-client relationship. 1. Questions to ask: a. What type of dispute is this? b. How much should we investigate this claim? c. Should we settle or go to trial? B. What Court Can Hear the Suit, and Where?: “Jurisdiction” and “Venue” 1. Types of jurisdiction: a. Subject Matter – concerns the type of suit that may be heard in a particular court i. Subject Matter Jurisdiction in State and Federal Courts - If both the state and the federal government have jurisdiction over a dispute, a claimant has a choice of where he wants the case to be heard Ex. Diversity cases – both federal and state courts have jurisdiction over diversity cases. Diversity cases are cases in which: a. Both parties are citizens of different states, and 1
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b. More than $75,000 is in controversy. ii. Federal courts are courts of limited jurisdiction and state courts are courts of general jurisdiction. a. Federal courts cannot hear every type of case because it would be a waste of resources, and the federal courts would be subject to hearing piddling claims. b. Almost any type of claim may be heard in state court. b. Personal Jurisdiction (jurisdiction over the defendant) – a person or entity must have sufficient contacts with the forum to be subject to the forum’s jurisdiction i. Distant forum abuse – a person who has insufficient contacts with the forum state can not be sued in its state courts 2. Service of process on the defendant - plaintiff must serve the defendant with process (suit papers) in a manner that conforms to federal and/or state law a. Reasoning - this gives notice to the defendant of the litigation and is necessary for the court to exercise jurisdiction over the defendant. C. Venue – venue statutes provide rules for which location within the federal court would be most appropriate should more than one federal court have subject-matter and personal jurisdiction over the defendant. 1. Forum Contests: The motion to dismiss a. If the defendant does not believe the suit will be undertaken in the proper forum, the defendant may file a “motion to dismiss” or “motion to transfer.” 2
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b. Sometimes, settlement occurs quickly after the forum dispute because, depending on where the trial will proceed, both parties have a good idea about how much the case will ultimately be worth (based on how much a jury might award a plaintiff, or has awarded in past situations, in that particular venue). D. Size of the Lawsuit: Multiple Parties and Claims 1. Multiple claims in one case a. Counterclaim – defendant asserts a claim against plaintiff b. Cross claim – defendant asserts a claim against a co-defendant c. Third party claim – defendant files a claim against a third-party because defendant believes that the third party is fully or partially liable
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This note was uploaded on 04/17/2008 for the course LAW Civ Pro taught by Professor Bassett during the Fall '07 term at Alabama.

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Civ Pro - Outline - Civil Procedure Outline Bassett Fall...

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