9780314156112

Civil Procedure

by ; ;
  • ISBN13:

    9780314156112

  • ISBN10:

    0314156119

  • Edition: 4th
  • Format: Hardcover
  • Copyright: 2005-05-27
  • Publisher: West Academic

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Summary

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.

Table of Contents

Preface iii
Westlaw Overview v
Introduction
1(8)
Civil Procedure Defined
1(3)
General Description of Court Systems
4(5)
Subject-Matter Jurisdiction and Venue
9(89)
Overview
9(2)
Federal Subject-Matter Jurisdiction
The Nature of the Federal Courts
11(4)
Federal--Question Jurisdiction
15(6)
Federal--Question Jurisdiction--The Well--Pleaded Complaint Rule
21(3)
Diversity-of-Citizenship Jurisdiction---In General
24(5)
Diversity-of-Citizenship Jurisdiction---Application of Diversity Requirements
29(11)
Diversity-of-Citizenship Jurisdiction---Devices to Create and Destroy Diversity
40(5)
Amount-in-Controversy Requirements
45(6)
Amount-in-Controversy Requirements---The Effect of Additional Claims and Additional Parties
51(3)
Actions in Which the United States Is a Party and Admiralty and Maritime Cases
54(5)
Removal Jurisdiction
59(8)
Supplemental Jurisdiction---History
67(9)
Supplemental Jurisdiction---Joinder of Claims
76(3)
Supplemental Jurisdiction---Joinder of Parties
79(3)
Venue
Venue Requirements
82(5)
Local and Transitory Actions
87(2)
Transfer and Forum Non Conveniens
89(9)
Personal Jurisdiction
98(105)
Overview
99(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
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
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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