Protocols of Litigating a Civil Essay
- Length: 26 pages
- Sources: 10
- Subject: Business - Law
- Type: Essay
- Paper: #89443652
Excerpt from Essay :
This is usually a low standard to achieve. As long as a person acts in a way which avails the person of the protection of the laws of that state, that person has subjected themselves to the jurisdiction of that state (International Shoe).
Next, the complaint will allege subject matter jurisdiction, i.e., that the lawsuit fulfill the requirements for this court to hear it? Pertinent requirements can include how much money haws plaintiff sued for or whether the case poses a question about a federal statute or the U.S. constitution. In many cases involving litigants from different states, the Plaintiff will allege that he is suing the Defendant for an amount greater than $75,000.00, which is the minimum monetary amount for federal subject matter jurisdiction (Title 28 U.S.C. § 1332(a)) and that the Plaintiff does not reside in the state in the same state as any defendant (Am Jur Pleading §177). This creates diversity of citizenship and fulfills subject matter jurisdiction for federal court.
The complaint must also allege that the proper venue has been chosen (Am Jur Pleading §174). This typically refers to the location of the court where the lawsuit is filed and will be tried. Proper venue will generally lie in the courthouse which is located in the same judicial circuit as any of the defendants or where the events giving rise to the cause of action occurred or where the parties agreed to submit to venue, by way of a contract, for instance (Am Jur Venue §1-35).
The Plaintiff will then allege the facts which occurred that meet the required elements of the tort (Fed. R. Civ. P. 8(a)). In the negligence example, the Plaintiff will allege that the defendant drove his vehicle into the rear end of Plaintiff's vehicle, thereby breaching his duty of due care and in so doing causing damage to the person and property of defendant.
The Plaintiff will repeat this for all torts she is suing for (Am Jur Pleading §177). If there are more than one defendants, the Plaintiff can claim that either is liable for the full amount of the claim or that together they are liable for the full amount. This is known as joint and several liability. The Plaintiff will also include a 'demand for judgment' at the end of the lawsuit which asks for the court to award the damages plead for (Am Jur Pleading §202).
After the lawsuit is filed with the proper court, it must be served on the Defendant with process (Fed. R. Civ. P. 4(c)). 'Process' is the term used for the notification that is delivered with the complaint which places the Defendant on notice that the complaint is a lawsuit and that it must be responded to in writing. The process is usually delivered via a document called a summons (Fed. R. Civ. P. 4(a)).
According to the Rules, the Defendant(s) has twenty-one days to file a written response to the lawsuit (Fed. R. Civ. P. 12(a)(1)(a)(i)). If no response to the lawsuit is filed, the Plaintiff can seek a default and a default Final Judgment, which awards the damages the Plaintiff is seeking (Fed. R. Civ. P. 55(a) and (b)). In its response, the Defendant responds to each numbered paragraph of the complaint by stating that the specified numbered paragraph is admitted, denied or that Defendant is without knowledge as to that allegation (Fed. R. Civ. P. 8(b)).
Any allegation admitted in the answer is deemed true for the rest of the proceedings and does not require further proof (Fed. R. Civ. P. 8(b)(6)). All allegations not admitted must be proved by the Plaintiff. The Defendant will also assert any applicable affirmative defenses in its answer (Fed. R. Civ. P. 12(b)). An affirmative defense admits the Plaintiff's allegations, but otherwise denies defendants liability (Am Jur Pleading §350). An example of this is comparative negligence, which attempts to reduce the amount of damages due a tort victim by their own negligence (Comparing Fault): The driver/plaintiff was not wearing her seat belt and thus the negligence of the driver contributed to her injuries. The Defendant's lawyer will research the defenses in the same fashion the Plaintiff's lawyer researched the torts. The Rules state that any affirmative defense not asserted in the answer is deemed waived (Fed. R. Civ. P. 8(h)).
If the defendant believes that Plaintiff has damaged or injured him, he will also include a counterclaim in his answer (Am Jur Counterclaim §1). If the factual basis of the counterclaim is the same as the factual basis for the complaint, the counterclaim is considered compulsory and if it is not filed with the answer it is deemed waived (Fed. R. Civ. P. 13(a)). A non- compulsory, or permissive, counterclaim can be filed any time until the statute of limitations in question expires (Fed. R. Civ. P. 13(b)).
Sometimes, the Plaintiff will file a reply to the answer seeking to avoid the affirmative defenses, deny any matters raised in the answer or raise new matters necessitated by allegations and issues raised in the answer (Am Jur Pleading §418). Assuming that no counterclaim has been filed, the reply is the final pleading and upon its filing or the expirations of the time for its filing, the pleadings are closed. A counterclaim must be answered (and at the option of the counterclaimant, replied to), and then the counterclaim's pleadings are closed.
Motion practice is like a trial within the trial. Disputes often arise among the parties regarding the issues and procedures within the lawsuit. These disputes are addressed through motion practice. Most courts require motions to be submitted in writing and a hearing be scheduled for the judge to hear the evidence and arguments pertaining to the motion (Am Jur Motions §6; Fed. R. Civ. P. 7(b)(1)). Motion are decided by the judge and not tried by a jury (Am Jur Motions §31).
There are several basic categories which most motions fall under. The first is motions directed to the pleadings. These motions will often assert that the pleadings are not sufficient or defective, or that other fundamental procedural requirements have not been followed. Most states have statutes and/or rules of procedural which model the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 12 (b)-(e) outlines the motions which may be raised against the pleadings. A motion to dismiss is commonly filed as a defensive motion to an insufficient or defective pleading on the following grounds:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.
These are the defensive motions authorized by Rule 12(b). If not raised in the initial defensive pleading, or before by separate motion, they are deemed waived.
In a typical case, if the motion for the above is granted, the case will be dismissed without prejudice. When a case is dismissed without prejudice it can be re-filed as a matter of right by the plaintiff in order to cure the defect (Fed. R. Civ. P. 41(b)). If the motion is granted as to the process or service of process, the remedy may be to have a new summons issued and the complaint re-served on the defendant(s).
Other Rule 12 motions directed at the pleadings include motions for a more definite statement (when certain allegations or aspects of the complaint are unclear, vague or ambiguous), motion for judgment on the pleadings (when the complaint and answer make it clear that plaintiff is entitled to the relief sought) and a motion to strike impertinent or scandalous allegations (the court can also do this on its own volition). All Rule 12 motions must be made concurrently and before (or as part of) the responsive pleading or they are waived (Fed. R. Civ. P. 12(g)(2)).
Another basic category of motions is directed towards discovery. These include motions to compel, motions for protection and motions for sanctions. These motions are discussed below under the discovery discussion. Similarly, many types of motions are designed to narrow the issues or exclude/admit evidence in the actual trial itself.
The motion for summary judgment is, in many lawsuits, the most significant motion. By way of summary judgment a party seeks to obtain, or avoid, judgment without a trial (Am Jur Summary §1). A summary judgment should be granted when the pleadings, together with all the evidence on the record, show that there is no triable issue of justiciable fact and that the moving party is entitled to judgment as a matter of law (Fed. R. Civ. P. 56 (c)(2)).
The evidence and arguments for summary judgment is viewed in a light most favorable to the non-moving party. It can be granted as to all or only some of the issues, including damages (Fed.…