Civil Procedure

, by Friedenthal, Jack H.; Kane, Mary Kay; Miller, Arthur Raphael

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ISBN: 9780314156112 | 0314156119
Cover: Hardcover
Copyright: 5/27/2005

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Gain insight into the laws governing all of the major steps in the civil litigation process, starting with investigation and ending with post-appeal collateral attacks. This text covers the major themes underlying the governing legal standards and those basic issues that the case law and literature suggest to be the most pressing. References to federal practice and procedure are provided with a discussion on the burden of complex, multi-party litigation on the judicial system.

Preface

iii

Westlaw Overview

Introduction

(8)

Civil Procedure Defined

(3)

General Description of Court Systems

(5)

Subject-Matter Jurisdiction and Venue

(89)

Overview

(2)

Federal Subject-Matter Jurisdiction

The Nature of the Federal Courts

(4)

Federal--Question Jurisdiction

(6)

Federal--Question Jurisdiction--The Well--Pleaded Complaint Rule

(3)

Diversity-of-Citizenship Jurisdiction---In General

(5)

Diversity-of-Citizenship Jurisdiction---Application of Diversity Requirements

(11)

Diversity-of-Citizenship Jurisdiction---Devices to Create and Destroy Diversity

(5)

Amount-in-Controversy Requirements

(6)

Amount-in-Controversy Requirements---The Effect of Additional Claims and Additional Parties

(3)

Actions in Which the United States Is a Party and Admiralty and Maritime Cases

(5)

Removal Jurisdiction

(8)

Supplemental Jurisdiction---History

(9)

Supplemental Jurisdiction---Joinder of Claims

(3)

Supplemental Jurisdiction---Joinder of Parties

(3)

Venue

Venue Requirements

(5)

Local and Transitory Actions

(2)

Transfer and Forum Non Conveniens

(9)

Personal Jurisdiction

(105)

Overview

(1)

Historical Development of Jurisdictional Doctrine

Traditional Bases of Jurisdiction

The Jurisdictional Categories

100

(2)

The Rule of Physical Presence

Pennoyer v. Neff

102

(3)

Jurisdiction Over Persons: Exceptions to the Rule of Physical Presence

The Presence Test: Some Problems and Limitations

105

(1)

Jurisdiction Based on Consent

106

(6)

Jurisdiction Based on Domicile and Residence

112

(2)

Jurisdiction Based on Corporate Presence and ``Doing Business''

114

(2)

Jurisdiction Over Property

In--Rem and Quasi-in-Rem Jurisdiction: Traditional Doctrine

116

(5)

Problems With Traditional Doctrine: Quasi-in-Rem Jurisdiction Under Stress

121

(4)

Contemporary Jurisdiction Notions: In--Personam Jurisdiction

Constitutional Requirements

The Basic Rule of International Shoe: The Minimum Contacts and Fair Play and Substantial Justice Requirements

125

(8)

Refinements of the Basic Standard: The Requirement of a Purposeful Act and Foreseeability

133

(13)

Statutory Requirements

The Growth and Use of Long-Arm Statutes

146

(3)

Particular Applications of Long--Arm Statutes

149

(8)

Contemporary Jurisdiction Notions: In--Rem and Quasi-in-Rem Jurisdiction

International Shoe Triumphant: A Uniform Standard for Jurisdiction

157

(4)

International Shoe Applied to In--Rem and Quasi-in-Rem Jurisdiction

161

(5)

The Seizure of Property: Requirements and Definition

166

(2)

The Impact of Shaffer v. Heitner on Pennoyer's Satellites

The Current Viability of Consent, Domicile, and Transitory Presence Theories

168

(4)

Amenability to Suit

Source of Governing Law

172

(4)

Notice and the Opportunity to Be Heard

Due--Process Requirements

The Requirement of Reasonable Notice

176

(4)

Service of Process as a Means of Notice

180

(4)

The Timing of Notice and the Opportunity to Be Heard

184

(4)

Service-of-Process Requirements and Limits

The Etiquette and Sufficiency of Service of Process

188

(3)

Impermissible Uses of Service of Process

191

(1)

Immunity From Service of Process

192

(3)

Challenges to Jurisdiction

Challenging Jurisdiction---An Introduction

195

(1)

Methods of Challenging Jurisdiction

195

(3)

Limited Appearances in Quasi-in-Rem Proceedings

198

(3)

Protecting the Defendant Against Vexatious Litigation

201

(2)

Ascertaining the Applicable Law

203

(48)

Federal Courts

The Rules of Decision Act and Swift v. Tyson

203

(4)

Erie Railroad Company v. Tompkins

207

(3)

Evolution of the Erie Doctrine

210

(7)

The Erie Doctrine and the Federal Rules

217

(8)

Determining Which State's Law Controls

225

(6)

Determining the Content of State Law

231

(6)

Federal Common Law

237

(10)

State Courts

Federal Law in State Courts

247

(4)

Modern Pleading

251

(82)

Introduction

252

(2)

The Function and Effectiveness of Modern Pleading

254

(2)

Types of Pleadings

256

(2)

Pleading Requirements

Code Pleading

Pleading a Cause of Action: A Definition

258

(4)

The Uncertain Meaning of ``Facts'' in the Code--Pleading System

262

(4)

Challenges Based on Indefiniteness, Ambiguity, or Uncertainty

266

(1)

Notice Pleading

The Basic Requirements of Notice Pleading

267

(2)

Adjustment of Federal and State Courts to Notice Pleading

269

(2)

Special Rules for Specific Cases and Facts

271

(2)

The Role of Motions to Clarify Pleadings

273

(2)

Truthfulness in Pleading

Devices to Assure Candor in Pleading

275

(8)

Alternative and Inconsistent Allegations

Ability to Assert Alternative and Inconsistent Allegations

283

(3)

Method of Asserting Alternative and Inconsistent Allegations; Incorporation of Allegations by Reference

286

(3)

The Complaint

Format Requirements; The Basic Elements of the Complaint

289

(4)

Pleading a Right to Relief

293

(3)

Special Problems of Pleading in Specific Cases

296

(5)

The Answer

General Rules

301

(1)

Admissions

302

(1)

Denials

303

(5)

Affirmative Defenses

308

(3)

The Reply and Subsequent Pleadings

The Propriety of Pleadings Beyond the Complaint and Answer

311

(2)

Challenges to Pleadings

Devices for Attacking the Substantive Sufficiency of the Pleadings

313

(3)

Devices for Challenging Uncertainty or Ambiguity

316

(2)

Devices for Challenging Form and Other Procedural Irregularities

318

(2)

Consequences of a Ruling on a Challenge to the Pleadings

320

(1)

Amended and Supplemental Pleadings

Amendments: In General

321

(3)

Amendments and the Statutes of Limitations

324

(5)

Supplemental Pleadings

329

(4)

Joinder of Parties and Claims

333

(63)

In General

History and Policy Behind Party and Claim Joinder

333

(2)

Consolidation, Separation, and Severance

335

(4)

Parties to the Action

Who Is a Proper Party---Real Parties in Interest, Capacity to Sue, and Standing

339

(11)

Permissive-Party Joinder

350

(5)

Compulsory--Party Joinder

355

(10)

Claims

The Standard for Claim Joinder---In General

365

(3)

Counterclaims

368

(9)

Cross--Claims

377

(3)

Third--Party Practice (Impleader)

380

(5)

Intervention

385

(11)

Discovery

396

(60)

Introduction

History, Purposes, and Techniques of Modern Discovery

397

(2)

Scope of Discovery

Scope---In General

399

(6)

Discovery Prior to the Commencement of the Case

405

(1)

Privileged Matters

406

(2)

Material Prepared for Litigation---The ``Work--Product'' Doctrine

408

(7)

Expert Information

415

(5)

The Mechanics of Modern Discovery Devices

Mandatory Planning Conference

420

(1)

Oral Depositions and Depositions on Written Questions

421

(6)

Written Interrogatories

427

(3)

Requests for Admission

430

(4)

Discovery and Production of Property

434

(4)

Physical and Mental Examinations

438

(3)

Special Rules and Problems Regarding the Details and Scope of Discovery

The Duty to Supplement Responses

441

(2)

Discovery Directed to Nominal Parties

443

(1)

Controlling Harassment or Oppression: Protective Orders

443

(3)

Sanctions and Motions to Compel Response

446

(5)

Use of Discovery at Trial

451

(2)

Public Access to Discovered Information

Court Control of Discovered Information

453

(3)

The Pretrial Conference

456

(9)

Nature and Purposes of a Pretrial Conference

456

(2)

Procedural Aspects of the Pretrial Conference

458

(4)

The Pretrial Order

462

(3)

Adjudication Without Trial

465

(23)

Summary Judgment

History and Purpose

465

(3)

Procedure for Obtaining a Summary Judgment

468

(5)

The Standard for Determining Whether to Grant a Summary Judgment

473

(7)

Default Judgment

The Entry of Default and Default Judgment

480

(3)

Dismissals

Voluntary and Involuntary Dismissals

483

(5)

The Trial Process

488

(19)

A General Description

488

(11)

The Law of Evidence

499

(8)

Jury Trial

507

(60)

Introduction

The Origins and Role of Jury Trial in Modern Society

507

(4)

The Judge--Jury Relationship

511

(5)

The Right to Jury Trial

The Right to Jury Trial---In General

516

(4)

Jury Trial in the Federal Courts---The Seventh Amendment and the Historical Test

520

(4)

Problems of Law and Equity in the Federal Courts---Modern Developments

524

(10)

Jury Trial in the Federal Courts---Statutory Causes of Action

534

(7)

Jury Trial in State Courts---The New York Approach

541

(5)

Problems of Federalism

546

(4)

Procedure for Obtaining Jury Trial

550

(6)

Trial by Jury

Selection and Composition of the Jury

556

(7)

Size of the Jury and the Requirement of Unanimity

563

(4)

Verdicts and Judgments

567

(51)

Decisionmaking

The Verdict: Its Entry and Form

567

(7)

Findings and Conclusions in Nonjury Cases

574

(4)

Attacks on Verdicts and Judgments

Directed Verdicts and Judgments Notwithstanding the Verdict (Judgments as a Matter of Law)

578

(13)

Motions for New Trial

591

(8)

Juror Misconduct and Impeachment of the Verdict

599

(8)

Motions to Alter the Judgment or for Relief From the Judgment

607

(11)

Appeals

618

(27)

Appealability

The Timing of Appeals---The Final--Judgment Rule

618

(8)

Judicial Exceptions to the Final--Judgment Rule

626

(3)

Statutory Exceptions to the Final--Judgment Rule

629

(7)

Reviewability

The Nature and Scope of Review

636

(9)

Former Adjudication

645

(89)

Overview and Terminology

645

(5)

Distinguishing Between Res Judicata and Collateral Estoppel---Claim and Issues Preclusion

650

(3)

Res Judicata---Claim Preclusion

General Principles Underlying Res Judicata

653

(5)

The Scope of Res Judicata---What Is a Claim or Cause of Action

658

(9)

The Scope of Res Judicata---Some Applications

667

(7)

The Scope of Res Judicata---The Effect of Res Judicata on Defendant's Assertions

674

(5)

Requirements for the Application of Res Judicata

679

(14)

Exceptions to the Application of Res Judicata

693

(2)

Collateral Estoppel---Issue Preclusion

General Principles Underlying Collateral Estoppel

695

(4)

The Scope of Collateral Estoppel---Defining an Issue

699

(9)

Requirements for the Application of Collateral Estoppel

708

(5)

Exceptions to the Application of Collateral Estoppel

713

(5)

Who Can Be Bound

General Principles Governing Who Is Bound

718

(5)

The Doctrine of Mutuality

723

(7)

Intersystem Problems of Former Adjudication

Principles Governing Judgment Recognition Across System Lines

730

(4)

Securing and Enforcing Judgments

734

(23)

Overview

734

(1)

Provisional Remedies

Attachment

735

(3)

Civil Arrest

738

(1)

Preliminary Injunctions

739

(3)

Temporary Receivers

742

(1)

Notice of Pendency

743

(2)

Enforcement of Judgments

Executions and Levies

745

(7)

Contempt

752

(5)

Specialized Proceedings: Class Actions, Derivative Suits, and Interpleader

757

(58)

Class Actions

In General

Purpose and History

757

(5)

Prerequisites

Federal Class--Action Prerequisites

762

(12)

State Class--Action Prerequisites

774

(3)

Personal and Subject--Matter Jurisdiction Requirements

777

(4)

Special Procedures and Problems

Procedures in Class Actions

781

(5)

Notice

786

(5)

Dismissal and Compromise

791

(2)

Binding Effect of a Class--Action Judgment

793

(3)

Shareholder--Derivative Suits

796

(5)

Interpleader

Purpose and History

801

(3)

Modern Interpleader: Practice and Procedure

804

(4)

Jurisdiction and Venue

808

(4)

Federal Injunctions Against Other Judicial Proceedings

812

(3)

Appendix: Researching Civil Procedure

815

(18)

Table of Cases

833

(96)

Table of Statutes and Rules

929

(28)

Index

957

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Civil Procedure

Summary

Table of Contents

Supplemental Materials