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Unformatted text preview: CIVIL PROCEDURE I Professor Linda Silberman New York University School of Law Fall 2006 Outline Introduction: Once Around the Track 1. An Initial Overview and a Little Bit of History 2 distinguishing characteristics of US system adversary system federal system – 98% of litigation in state courts, jurisdiction sometimes exclusive to one or overlapping. Art. III, Sec. 2 defines scope of federal courts 2. Stages of a Lawsuit a. Power of the Tribunal Over the Subject Matter of the Suit (Subject Matter Jurisdiction) Purposes of diversity juris. Prevents bias against outsider Ds Democratic participation theory As they work, the rules don’t track these concerns well. Subject matter juris. objections can be raised almost anytime – on appeal, sua sponte, after a default, even sometimes after a litigated judgment. Why? Goes to the heart of the competency of the court b. Power over the Person of the Defendant (Personal Jurisdiction) Elements: notice and power. Notice - service under FRCP 4 Since P bringing the lawsuit, logical that burden is on him to go somewhere where there is power over the D. Personal juris., unlike subject mater, is waiveable c. Pleadings and Certification Rule 12(b) defenses – (1) lack of subject matter juris., (2) lack of personal juris., (3) improper venue, (4) insufficient process, (5) insufficient service, (6) failure to state a claim upon which relief can be granted, (7) failure to join a rule 19 party if you make a Rule 12 motion, you have to make them all at once (12(g)) however, certain “durable defenses” – failure to join Rule 19, 1(2b)(6) – can be made later in the pleadings And, of course, lack of subject matter juris. can be raised at any time Rule 8 – Geneal Rules of Pleading Federal rules liberal in allowing amendments to the complaint Purposes of the pleading system: Give notice Set out factual and legal issues – narrow down to ones that are contested Efficiency – dispose of non-meritorious cases w/o trial The Answer Must respond to all the allegations in the complaint. three choices: admit, deny, claim are without knowledge Can also: raise affirmative defenses, make counterclaims, or make 12b motions Rule 15 – Amended and Supplemental Pleadings Can basically do anything you could’ve done in the beginning, but is at the discretion of the court Pros and cons of Rule 11 pro: counteracts loose pleading requirements to deter frivolous suits con: can end up dismissing meritorious claims because of lawyer misconduct (as in Garr – though without prejudice) con: encourages more pleadings, a “battle over fees” (the Rule 11 penalty)...
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This note was uploaded on 04/04/2008 for the course LAW ALL taught by Professor Multiple during the Fall '06 term at NYU.
- Fall '06