简明美国民事诉讼法教程.doc

简明美国民事诉讼法教程
Chapter 1
INTRODUCTION
I. CIVIL PROCEDURE GENERALLY
A. A road map: Here is a "road map" for analyzing a Civil Procedure problem:
1. Personal jurisdiction: First, make sure that the court has "personal jurisdiction" or "jurisdiction over the parties." You must check to make sure that: (1) D had minimum contacts with the forum state (whether the court is a state or federal court); and (2) D received such notice and opportunity to be heard as to satisfy the constitutional requirement of due process. [7 - 85]
2. Venue: Then, check whether venue was correct. In federal court suits, the venue requirement describes what judicial district the case may be heard in. Essentially, the case must be heard either: (1) in any district where the defendant resides (with special rules for multi-defendant cases; or (2) in any district in which a
substantial part of the events giving rise to the claim occurred. See 28 . ?391. [86 - 97]
3. Subject matter jurisdiction: If the case is a federal case, you must then ask whether the court has subject matter jurisdiction. Essentially, this means that one of the following two things must be true: [100 - 146]
a. Diversity: Either the case is between citizens of different states (with "complete diversity" required, so that no plaintiff is a citizen of the same state as any defendant) and at least $75,000 is at stake; or
b. Federal question: The case raises a "federal question." Essentially, this means that plaintiff’s right to recover stems from the . Constitution, a federal treaty, or an act of Congress. (There is no minimum amount required to be at stake in federal question cases.)
4. Pleading: Next, you must examine whether the pleadings are proper. [149 - 179]
5. Discovery: Next, you may have plex of issues relating to pre-trial discovery. [181 - 231]
6. Ascertaining applicable law: Now, figure out what jurisdiction’s law should be used in the case. The most important problem of this type is: In a divers