Workbook: Civil Procedure

WORKBOOK: CIVIL PROCEDURE

GOULD'S WORKBOOK

for CIVIL PROCEDURE

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TABLE OF CONTENTS

Chapter 1. INTRODUCTION TO GOULD’S LEGAL LEARNING METHOD…4.

Chapter 2. GOULD’S SHOPPING LIST…5.

Chapter 3. THE COMPLAINT…7.

Chapter 4. OTHER PLEADINGS…9.

Chapter 5. SUBJECT MATTER JURISDICTION…22.

Chapter 6. PERSONAL JURISDICTION…27.

Chapter 7. TERMINATION WITHOUT A TRIAL…33.

Chapter 8. PARTIES…37.

Chapter 9. PRECLUSIVE EFFECT…45.

Chapter 10. THE ERIE DOCTRINE…48.

Chapter 11. DISCOVERY…50.

Chapter 12. TRIALS AND APPEALS…57.

Chapter 13. GOULD'S LEARNING SYSTEM…60.

Chapter1.

INTRODUCTION TO GOULD’S

LEGAL LEARNING METHOD

Gould's Legal Learning Techniques have been honed over many years, and have helped thousands of law students to succeed in their legal studies.

Gould's unique and innovative learning strategies focus on long-term storage of important and cognizable concepts. Students learn the larger concepts until they are second-nature. Then, they learn the sub-issues, until they have a solid grasp of Gould’s Law Templates.

Finally, students learn the rule statements that relate to each concept, to fill out their understanding of each area of legal doctrine.

Before exams begin, students write out a cognizable list of possible issues, aiding to spot more issues. Gould’s Shopping Lists reliably help students to spot more issues on each essay they write. Shopping Lists allow students to cue in on the important concepts in each essay, and to remember to write their essay responses from an holistic and comprehensive perspective.

Many legal exams are based on strict timing, and Gould’s Techniques comport nicely with speed testing. Gould’s Issue Templates, and Gould’s Shopping Lists, focus the students on the ISSUES AND SUB-ISSUES, quickly, and precisely, thereby enhancing the ability of law students to write dynamic essays.

Chapter 2.

GOULD’S SHOPPING LIST FOR CIVIL PROCEDURE

Gould's Shopping List for Civil Procedure consists of ten items:

THE COMPLAINT

OTHER PLEADINGS

SUBJECT MATTER JURISDICTION

PERSONAL JURISDICTION

TERMINATION WITHOUT A TRIAL

PARTIES

PRECLUSIVE EFFECT

ERIE DOCTRINE

DISCOVERY

TRIALS AND APPLEALS

There it is, an entire Shopping List for Civil Procedure, with only TEN ITEMS and just TWENTY-TWO WORDS!

The shopping list focuses you on the entire spectrum of Civil Procedure, and assists you in spotting more issues during a timed legal essay. Write the Shopping List before you begin to write your essay, so that you can consider your Shopping List in light of the facts, and thereby use your list to spot more issues. Cross of any items that are not part of the question, and focus on the items which are issues in the essay.

First consider whether you are called upon to discuss the complaint. The complaint starts the civil contest between two parties.

Then, consider whether you should discuss other pleading issues, such as those related to proper authorization of a pleading.

Then, consider whether you are to discuss subject matter jurisdiction, or personal jurisdiction.

Then, consider whether one of the ways in which the claim could be terminated without a trial is an issue.

Then, consider whether you have an issue related to the parties, such as joinder of a party.

The, consider whether you should discuss an issue related to a pre-trial conference.

The Erie Doctrine relates to what area of law is to be used in a claim.

Discovery occurs after the pleading stage.

Finally, consider whether there are any issues related to trials and appeals.

CHAPTER 3.

THE COMPLAINT

BASIC TEMPLATE.

THE COMPLAINT

NOTICE PLEADING / SUFFICIENT COMPLAINT.

1. Short and Plain Statement of Jurisdiction.

2. Short and Plain Statement of Claim.

3. Demand for Judgment.

SPECIAL MATTERS / PARTICULARITY.

Fraud, Mistake, Special Damages, Conditions Precedent.

ESSAY HINTS.

The filing of a complaint, begins the claim.

Often, you will be asked to determine if plaintiff has submitted a sufficient complaint. When confronted with this question, discuss the three points involved in the template for notice pleading.

Finally, consider whether ‘special matters” such as fraud, calls for a more specific description in the complaint.

GOULD’S DOCTRINE.

PLEADINGS.

The pleadings in a case are the documents that set forth the claims and defenses of the parties, and are construed liberally, so as to do substantial justice. The complaint and the summons must be served upon the defendant. The other pleadings are served by delivering the document's to a party's attorney, or sending them to the attorney via the mail. If the documents are mailed, three extra days are allowed for the required response time period. The pleadings must contain captions that include the name of the court, the title of the action, the file number, and the type of pleading.

THE COMPLAINT.

Plaintiff's complaint is the document that begins an action. Complaints put a defendant on notice of the claim. A plaintiff may assert different claims in the complaint, even if the claims are based of differing, alternative or inconsistent theories.

NOTICE PLEADING.

Federal courts require notice pleading, not code pleading, and a statement of the claim need not be stated with particularity, but need only be sufficient to put defendant on notice of plaintiff's claim. Notice pleading allows the defendant to prepare to defend themselves. A sufficient complaint will contain:

A short and plain statement of the grounds upon which jurisdiction of the court depends.

A short and plain statement of the claim indicating that plaintiff is entitled to relief.

And, a demand for judgment.

SPECIAL MATTERS.

Where plaintiff asserts fraud, mistake, special damages, or conditions precedent, such claims must be stated with particularity. Common remedies for lack of special matter particularity, include a motion for a more definite statement, or deferment of the matter to discovery.

CHAPTER 4.

OTHER PLEADINGS

ESSAY HINTS.

There are numerous doctrinal considerations that occur at the pleadings stage, including service or process, amendment, venue, removal, Rule 12 motions, counterclaims, and etc.

The best way to approach all of the separate issues at the pleading stage is carefully consider the calls of the question, in order, to determine what issues you should discuss.

Service of process is related to a discussion of Personal Jurisdiction, and sometimes both issues are part of the same discussion.

Defendant’s answer must be timely, and it must state a stance on each averment of the complaint.

A plaintiff may amendment the complaint as of right in some circumstance, or by permission of the court in other circumstances.

A counter-claim occurs when the defendant brings a claim against the plaintiff, and a cross-claim occurs when a plaintiff sue another plaintiff, or when a defendant sues another defendant.

Venue of the court may be changed, and a defendant may have a case removed from state court to federal court.

SERVICE OF PROCESS

BASIC TEMPLATE.

SERVICE OF PROCESS

Personal Service.

Substituted Service.

Waiver of Service by Mail.

Process Delivered to Defendant in Another State.

Process Delivered to Defendant’s Authorized Agent.

GOULD’S DOCTRINE.

SERVICE OF PROCESS.

A summons is a formal court notice of suit, which delineates a time period for response to the summons. Service of process includes both the summons and the copy of the complaint. Service of process must be done within 120 days of filing the complaint, unless good cause can be shown, otherwise, the case will be dismissed without prejudice. Process may be served by any non-party who is 18 years of age or older.

METHODS OF SERVICE.

A federal district court may use any method of service permitted by the law of the state in which it sits, the law of the state in which service is effected, or through the methods of service of process delineated in the Federal Rules of Civil Procedure (FRCP).

PERSONAL SERVICE.

Under the FRCP, personal service may occur where service is effectuated personally to defendant anywhere in the forum state, unless the defendant is present only as a party or a witness in another civil claim.

SUBSTITUTED SERVICE.

Substituted service, where process is left with someone other than the defendant at defendant's home, is proper where process is left at defendant's usual home, and the person served is of suitable age and discretion, who also resides in the home.

WAIVER OF SERVICE BY MAIL.

Where process is mailed by first class mail, postage prepaid, and defendant returns a waiver form within thirty days, defendant will have waived service. If defendant does not return the waiver form, defendant must be personally served or served through substitute service.

PROCESS DELIVERED TO DEFENDANT IN ANOTHER STATE.

Process delivered to defendant in another state is proper where the state court could have exercised personal jurisdiction over the out-of-state service through a long-arm statute. Under the bulge rule, a federal court can serve a defendant outside of the forum state, but within one hundred miles of the federal court.

PROCESS DELIVERED TO DEFENDANT'S AUTHORIZED AGENT.

Process may be delivered to defendant's registered agent, or to a corporate officer.

DEFENDANT'S ANSWER / RULE 12 MOTIONS.

BASIC TEMPLATE.

DEFENDANT'S ANSWER / RULE 12 MOTIONS.

No More than 20 Days After Service.

DEFAULT JUDGMENT. If Not Timely.

ANSWER. Admit, Deny, Lack of Sufficient Information. Motion for More Definite State, or Motion to Strike.

AFFIRMATIVE DEFENSES. Waived if Not Raised.

Failure to Deny is an Admission.

FRCP RULE 12 DEFENSES.

Lack of Subject Matter Jurisdiction. May Assert Anytime, Never Waived.

Failure to State a Claim or Join Parties. May Assert At Any Point through Trial.

Lack of Personal Jurisdiction, Improper Venue, Insufficient Process or Service of Process. Must

Assert in First Response in Answer / Motion, or Else Waive.

ESSAY HINTS.

After the defendant is served with the complaint, they have twenty days to answer.

If the defendant does not answer a complaint in a timely manner, a default judgment is entered.

In the answer, the defendant must reply to all of the averments in the complaint.

In the answer, the defendant must assert affirmative defenses, or else the defenses are waived.

Failure to deny an averment is an admission.

Lack of subject matter jurisdiction may be asserted at any point, and is never waived.

Lack of personal jurisdiction, improper venue, insufficient process, or insufficient service of process must be asserted in the answer or motion, or else they are waived.

GOULD’S DOCTRINE.

DEFENDANT'S ANSWER / RULE 12 MOTIONS.

A defendant must respond by motion or by answer not later than twenty daysafter service of process, or not later than ten days after a ruling on a pre-answer motion, or else they risk the entry of a default judgment by the court. Where a defendant has waived their service of process, they have sixty days from plaintiff's mailing of the waiver form in which they must answer the complaint. When responding by an answer, defendant must respond to all of the allegations by admitting, denying, or stating that there is a lack of sufficient information from which to admit or deny. Defendant may raise affirmative defenses in their answer, even if the defenses are contrary to each other. An affirmative defense is waived if it is not raised, but it may be included later through amendment of the complaint. A failure to deny an allegation, is deemed as an admission to the allegation, unless the allegation relates to damages.

MOTIONS RELATED TO THE FORM OF THE COMPLAINT.

Motions related to issues related to form must be asserted by the defendant before filing of a responsive pleading, or else they will be waived. A motion for a more definite statement is asserted when the pleading is so vague that the defendant cannot adequately respond to the pleading. A motion to strike seeks to delete impertinent, redundant, immaterial or scandalous material from a pleading, and are granted where the allegations have no relation to the controversy and may serve to prejudice the other party.

FRCP RULE 12 DEFENSES.

LACK OF SUBJECT MATTER JURISDICTION. Defendant may assert the defense of lack of subject matter jurisdiction anytime, and subject matter jurisdiction may never be waived. Additionally, subject matter jurisdiction defense may be raised for the first time on appeal.

FAILURE TO STATE A CLAIM or JOIN PARTIES.

Defendant may assert the defenses of failure to state a claim upon which relief may be granted, or failure to join an indispensable party, at any point through trial. The above defenses cannot be raised for the first time on appeal.

LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, INSUFFIENT PROCESS OR SERVICE OF PROCESS.

Defendant may assert the defenses of lack of personal jurisdiction, improper venue, insufficient process, or insufficient service of process in defendant's first response through answer or motion, or they will waive these defenses.

MOTIONS CHALLENGING THE CLAIM.

A failure to state a claim upon which relief may be granted, a judgment on the pleadings, and a summary judgment, relate to the merits of a claim, and are typically filed before defendant's answer, after defendant's answer, or after discovery, respectively.

AMENDMENT of the PLEADINGS

BASIC TEMPLATE.

AMDENDMENT OF THE PLEADINGS.

PLAINTIFF.

As of Right Before Defendant Files Answer.

DEFENDANT.

As of Right Within 20 Days After Filing Answer.

BY LEAVE OF COURT. Plaintiff May Amend Complaint, Where:

Justice So Requires.

No Unnecessary Delay or Prejudice.

Defendant Consents in Writing.

RELATION BACK DOCTRINE.

Amended Pleadings Must Relate Back to Same Transaction, Conduct or Occurrence as Original Claim.

AMENDMENT AT TRIAL.

For Evidence of New Claim.

Defendant Does Not Object.

SUPPLEMENTAL PLEADINGS.

For Evidence That Takes Place After Complaint is Filed.

ESSAY HINTS.

An amendment to a pleading may occur as of right, or by leave / permission of the court.

The relation back doctrine is often important to discuss.

GOULD’S DOCTRINE.

AMDENDMENT OF THE PLEADINGS

Plaintiff may amend their pleadings as of right one time prior to defendant's filing of an answer, and defendant may amend their answer one time within twenty days of filing their answer. After defendant's answer, plaintiff may seek leave of court to amend the complaint, and leave of court to amend will be granted where justice so requires, and there is no unnecessary delay or prejudice, or if defendant consents in writing to the amendment. An amended complaint supersedes the complaint that was originally filed with the court, and a response is needed unless the amendment was minor.

RELATION BACK DOCTRINE.

Amended pleadings relating back to the same transaction, conduct or occurrence as the original claim, will be allowed, even where the statute of limitations has run. A joined party will relate back where the new party received notice of the action and thus was not prejudiced, and knew that but for a mistake they would have originally been joined, and they are joined within 120 days after the filing of the original complaint.

AMENDMENT AT TRIAL.

Where plaintiff, during trial, introduces evidence of a new claim, and the defendant does not object, the defendant will have impliedly consented to trial of the new claim. After trial, the plaintiff may move to amend the pleadings or the pre-trial conference to include the new claim. Where defendant objects to the new claim, it will not be joined because it will be at variance with the pleadings.

SUPPLEMENTAL PLEADINGS.

A supplemental pleading adds to the original pleading certain events that have taken place after the complaint was filed with the court, and must be granted by the court. Upon the court's discretion, a supplemental pleading may cure a defect in the original complaint.

COUNTER-CLAIMS and CROSS-CLAMS

BASIC TEMPLATE.

COUNTER-CLAIMS and CROSS-CLAMS

COUNTER-CLAIMS.

File with Answer.

Plaintiff Must Answer, or Else Allegations are Admitted.

COMPULSORY COUNTERCLAIM.

Arises Out of Same Transaction or Occurrence as Plaintiff’s Claim.

Must be Filed in Pending Suit, or Lose Right to Sue.

EXCEPTION. Not Applicable where the Claim had Previously Been Asserted, or Defendant Had Case Dismissed Before Answering the Complaint.

If No Independent Subject Matter Jurisdiction. May Assert Supplemental Ancillary Jurisdiction.

PERMISSIVE COUNTERCLAIM.

Does Not Arise Out of Same Transaction or Occurrence as Plaintiff’s Claim.

Does Not Have to be Filed in Pending Suit.

Must have Subject Matter Jurisdiction.

CROSS-CLAIMS.

Claim Against a Co-Party.

May be Filed if it Arises Out of Same Transaction or Occurrence as Underlying Action.

Not Compulsory.

Must Satisfy Subject Matter Jurisdiction or Supplemental Jurisdiction.

ESSAY HINTS.

Counter-claims are claims against the other party, and cross-claims are claims against a co-party.

Compulsory counterclaims must be filed in the pending suit.

Permissive counterclaims do not need to be filed in the current suit.

GOULD’S DOCTRINE.

COUNTER-CLAIMS.

A counterclaim is a claim against an opposing party that is filed with defendant's answer, and the plaintiff then replies to the counter-claim, or else the allegations in the counter-claim are deemed as admitted.

COMPULSORY COUNTERCLAIM.

A compulsory counterclaim arises out of the same transaction or occurrence as plaintiff's claim, and it must be filed in the pending suit or else the right to sue is waived, unless the claim had previously been asserted or the defendant had the case dismissed before answering the complaint. Where there is no independent subject matter jurisdiction for the counter-claim, supplemental ancillary jurisdiction may allow the court to hear the claim.