Course Outline

Course Outline - Civil Procedure - Course Outline 8/24 -...

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Civil Procedure - Course Outline 8/24 - OVERVIEW - Intro/Sub. Matter Jurisdiction General introductory: 1. What is civil procedure? a. Dispute between two parties…Neither of whom are the state b. Procedure is the how: The law, principles, and practices that govern the behavior of the courts (judges, juries), lawyers, and parties in dealing with non-criminal disputes that turn into lawsuits. c. Law of civpro: i. Constitution ii. Federal Statutes - 28 USC etc iii. Fed Rules Civ Pro d. FRCP Rule 1: Sets principles/policies of the rules - Just (fair), speedy, and efficient…Finality e. Why litigation? i. Litigation is the mechanism for the enforcement of legal rights ii. Threat of litigation concentrates dispute resolution iii. Possibility shapes transaction 2. Differentiate civil from criminal a. Remedies are different - In civil it's strictly money damages or injunctive relief… Criminal can take away rights, cause loss of liberty b. Jail is less than one year, prison is more 3. Key terms: a. Due process - Both the notice and opportunity to allow one to defend himself b. Stipulate - agreement c. Actors - judge, juries, lawyers, parties d. Procedure - How do you get a court to listen to you…Conduct in the court Hawkins Case - Sub. Matter Jurisdiction F: P killed in auto accident by truck driven by D…D resident of Kansas…P now living in Kansas with his wife, but maintains connections to Missouri. ..P needs Dis. court to find he is a "citizen" of Missouri for court to hear his case… Pro: FRCP 12(b)(1) m. to dismiss for lack of SMJ… 1. SMJ a. Where can suit be brought? b. What do we need to say to get a court to hear our case? 2. State v. Federal a. State courts are courts of GENERAL JURISDICTION…They have the power to hear every type of case b. Federal: Courts of LIMITED JURISDICTION - Set by Article 3 of the Constitution…Then clarified by 28 USC i. How do we get to federal courts?
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ii. 1332 - Diversity…Citizens of two different states 1. 1332(a) Is between "citizens of different states" iii. Why diversity? Arises out iv. 1331 - Federal case, "arising under" federal law 3. Why does Hawkins fail to find diversity? a. "Citizenship" legal test - Precedential, and one's "domicile" is subject to two parts i. Physical presence AND ii. Intent to remain 1. Fact based inquiry a. Evidence points to only a "floating intent" b. No diversity of jurisdiction if party has recently moved and makes no action to return to former state b. Thus, case can't be tried in ANY federal court because of lack of diversity/no SMJ c. REMEMBER - You can't waive SMJ - Court can dismiss a claim at ANY TIME when it finds it has no SMJ…You can give court power to hear a case w/o SMJ 8/27 - OVERVIEW - Personal Jurisdiction/Venue/Stating a case/R.11/Response/Amendments 1. Personal Jurisdiction GENERALLY a. Due Process Clause (14th Amend.) b. Power over the D's person - Does D have enough context/contacts with a region to make litigation fair c. Personal jurisdiction CAN BE WAIVED
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This note was uploaded on 09/02/2010 for the course JD 0001 taught by Professor Denbaugh during the Winter '10 term at N. Essex.

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Course Outline - Civil Procedure - Course Outline 8/24 -...

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