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Law Outlines Civil Procedure Outlines

Civil Procedure Spring Outline

Updated Civil Procedure Spring Notes

Civil Procedure Outlines

Civil Procedure

Approximately 57 pages

I handwrote my notes for this entire class and used the notes to create this outline for use preparing for the Final Exam...

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Creel_CivProII_Spring_2010

  1. Venue in Federal Courts

    1. Venue is the geographical location where the lawsuit is filed (Statutory not constitutional query)

      1. Types of Actions when discussing Venue

        1. Transitory Actions

          1. Can be brought anywhere (nature of underlying claim does not lock controversy to any specific venue) -- Tort or breach of contract claim

        2. Local Actions

          1. Proceeding that directly affects the ownership or possession of real property

          2. Nature of the underlying claim locks it to a specific geographical location

      2. Must raise the 12(b)(3) objection to venue in initial pleading/response or lose it forever according to 12(h)(1)

    2. Venue must be found as to each claim and defendant

    3. General Venue Statute: 28 U.S.C. §1391

      1. 1391 Specifics

        1. Diversity Actions (subsection (a))

          1. (1) Can be brought in a judicial district where any defendant resides if all defendants reside in the same state

          2. (2) Judicial District in which a substantial part of the events or omissions giving rise to the claim occurred

            1. First of Michigan Corp.

              1. Basic teaching of the case is that the substantial events leading to the case can have occurred in several areas and do not need to pick the best one; so potential for multiple proper venues

              2. Not the same query as minimum contacts because you can look at both PL and DF actions to determine what actions gave rise to the claim

          3. (3) Fallback provision -- any judicial district in which any defendant is subject to PJ at the time action is commenced, if there is no other district (typically overseas claims)

        2. Non-Diversity Actions (subsection (b))

          1. (1) Can be brought in a judicial district where any defendant resides if all defendants reside in the same state

            1. Residence has been interpreted to mean domicile

          2. (2) Judicial District in which a substantial part of the events or omissions giving rise to the claim occurred

            1. First of Michigan Corp.

          3. (3) Fallback provision -- any judicial district in which any defendant may be found, if there is no other district (typically overseas claims)

            1. D may be found before, after, or simultaneously with the commencement of the lawsuit.

        3. (subsection c) -- Defines corporations in terms of residence (resident of any judicial district in which the corporation is subject to PJ at the commencement of the action)

          1. Only definitional, not venue statute and works with (a) and (b)

        4. (subsection d) -- Can sue an alien in any district

          1. They must be subject to PJ

          2. Where an alien is joined with a US Citizen, disregard the alien

    4. Transfer of Venue

      1. General Tips

        1. Can only transfer to a Fed. D. Ct. that had PJ over the D and is a proper venue

        2. Transfer is limited to another federal district where action might have been brought

          1. Granting transfer is completely w/in the discretion of the court

          2. Burden is on D to show the action would be better litigated in another district. OVERWHELMINGLY CONVINCING.

        3. May transfer based on 4 things:

          1. 1) Convenience of parties, 2) Convenience of witnesses, 3) Interest of justice, 4) Case could have been brought in the transferee district.

        4. If a case arises under federal question, the federal law applied is that of the transferee court ALWAYS.

      2. 28 USC § 1404(a)

        1. For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

          1. Only applies when venue in the original court is proper

          2. DF cannot submit to personal jurisdiction of the new forum if they were not originally under PJ there

          3. Can only transfer intra-district. Cannot transfer to state court or foreign court.

          4. Interest of justice is the standard -- we want to hear the case on the merits if possible

          5. The choice of law rules from the original court follow the case.

        2. Factors to consider (from Colonial Penn)

          1. The availability and convenience of witnesses and parties

          2. The location of counsel

          3. The location of books and records

          4. The cost of obtaining attendance of witnesses and other trial expenses

          5. The place of the alleged wrong

          6. The possibility of delay and prejudice if transfer is granted

          7. The plaintiff's choice of forum (which is generally entitled to great deference)

        3. Private and Public Factors

          1. Private

            1. Strong preference for plaintiff's choice of forum

            2. Ease of access to sources of proof

            3. The availability of compulsory process for unwilling witnesses

            4. The cost of obtaining attendance of willing witnesses

            5. Practical problems that make trial of a case easy, expeditious and inexpensive

          2. Public

            1. Relative congestion of court dockets

            2. Choice of law considerations

            3. Relationship of the community in which the courts and jurors are required to serve to the occurrences that gave rise to the litigation

        4. Clearly Erroneous Review – discretionary decisions

      3. 28 USC § 1406(a)

        1. Used when venue is improper or there is no PJ

          1. If you have a case filed in the improper venue, the court shall dismiss or if in the interest of justice transfer to a court where it might have been brought

        2. Original court has discretion to transfer or dismiss

          1. When venue is proper but PJ is lacking, is the only option for the court to dismiss?

            1. No, the court has the power to transfer a case to a district where venue and PJ are proper (Goldlawr)

        3. Substantive law is the new forum

      4. 28 USC § 1631: Transfer to cure want of jurisdiction

        1. 10th Circuit uses this

        2. If want of jurisdiction, the court can transfer in the interest of justice.

        3. Can transfer to any court where the action could have originally been filed.

      5. Governing Law upon transfer

        1. Diversity Cases (Van Dusen Rule)

          1. If the transfer is made under 1404(a), the substantive law follows the original court (transferor court)

          2. If the transfer is made under 1406(a), the substantive law follows the new court (transferee court)

          3. NOTE: If PJ is lacking and case is transferred under 1406, 1404 or 1631, the substantive law of the transferee court applies (Van Dusen does not apply)

        2. Federal Question claims

          1. Federal...

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