Civil Procedure I Michael H. Hoffheimer

Law 503 (§ 2) University of Mississippi

TTH 2:00-3:20 p.m. room 108 School of Law

Fall 2006 Lamar 565, 915-6865

Required

1. Stephen C. Yeazell, Civil Procedure (6th ed. 2004)

2. Stephen C. Yeazell, Federal Rules of Civil Procedure with Selected Statutes--2006 (2006)

Course requirements

Attendance, preparation, and participation are required. The final grade will be based on the grade earned on the final exam and any quizzes. In rare cases, a grade may be raised by up to one full grade for extraordinary contribution to class discussion.

Course overview and objectives

Civil procedure is the law governing how legal issues of all kinds (except crimes) are presented to and resolved by courts. Civil Procedure I covers the structure of the federal and state court systems. The major topics are: subject matter jurisdiction, personal jurisdiction, and venue. We will read most of Part A (the first half) of the casebook.

In this course you will learn to read and apply cases, rules, statutes, and constitutional provisions that create and regulate the courts. You will gain a working knowledge of the law that regulates the federal and Mississippi state court systems.

Readings

The first assignment is 1) Yeazell casebook pages 1-12, 2) statutes (in the supplement) referred to in the casebook assignment, and 3) selected Mississippi Rules of Professional Responsibility (attached to this syllabus). Future assignments will be announced in class. Always read the statutes in the supplement that are referred to in casebook readings.

Lectures

You are required to attend one of the two scheduled law school lectures: Professor Paul Butler, October 26, Moot I at 4pm; Professor John Coffee, November 2, Moot I at 4pm.

Office hours

I am at my office workdays during the day and you are welcome to come by without an appointment. I am also happy to make appointments.

Exams and quizzes

There will be a closed book final exam December 15, 2006 at 1:00 p.m. Quizzes may be administered in class during the semester without advance notice. Quizzes will count for no more than one-third of the final grade.

References

The following are all in the library and are useful in answering specific questions about civil procedure:

Jack H. Friedenthal et al., Civil Procedure (3d ed. 1999)

Mary K. Kane, Civil Procedure in a Nutshell (5th ed. 2003)

Gene R. Shreve & Peter Raven-Hansen, Understanding Civil Procedure (3d ed. 2002)

Old exams

Copies of old exams, model answers, and other old course material are available at my homepage and at the library reference desk. Please note that casebooks and course coverage differ from year to year.

Selections from Mississippi Constitution

Article 1

DISTRIBUTION OF POWERS

Section 1. The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

Section 2. No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

Article 6

JUDICIARY

Section 144. The judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this constitution.

Section 145B. The Supreme Court shall consist of nine judges. . . .

Section 146. The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. The Legislature may by general law provide for the Supreme Court to have original and appellate jurisdiction as to any appeal directly from an administrative agency charged by law with the responsibility for approval or disapproval of rates sought to be charged the public by any public utility. . . .

Section 147. No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.

Section 152 gives the legislature the authority to create circuit and chancery court districts, and, if the legislature fails to act, this section gives the supreme court authority to establish new districts.]

Section 156. The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law.

Section 157. All causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court.

Section 159. The chancery court shall have full jurisdiction in the following matters and cases, viz.:

(a) All matters in equity;

(b) Divorce and alimony;

(d) Minor's business;

(e) Cases of idiocy, lunacy, and persons of unsound mind;

(f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

Section 160. And in addition to the jurisdiction heretofore exercised by the chancery court in suits to try title and to cancel deeds and other clouds upon title to real estate, it shall have jurisdiction in such cases to decree possession, and to displace possession; to decree rents and compensation for improvements and taxes; and in all cases where said court heretofore exercised jurisdiction, auxiliary to courts of common law, it may exercise such jurisdiction to grant the relief sought, although the legal remedy may not have been exhausted or the legal title established by a suit at law.

Section 161. And the chancery court shall have jurisdiction, concurrent with the circuit court, of suits on bonds of fiduciaries and public officers for failure to account for money or property received, or wasted or lost by neglect or failure to collect, and of suits involving inquiry into matters of mutual accounts; but if the plaintiff brings his suit in the circuit court, that court may, on application of the defendant, transfer the cause to the chancery court, if it appear that the accounts to be investigated are mutual and complicated.

Section 162. All causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court.

Section 171. A competent number of justice court judges and constables shall be chosen in each county in the manner provided by law, but not less than two (2) such judges in any county, who shall hold their office for the term of four (4) years....

The maximum civil jurisdiction of the justice court shall extend to causes in which the principal amount in controversy is Five Hundred Dollars ($500.00) or such higher amount as may be prescribed by law. The justice court shall have jurisdiction concurrent with the circuit court over all crimes whereof the punishment prescribed does not extend beyond a fine and imprisonment in the county jail; but the Legislature may confer on the justice court exclusive jurisdiction in such petty misdemeanors as the Legislature shall see proper. . . .

Section 172. The legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient.

Selected Mississippi Statutes

Miss. Code Ann. Section 9-4-1. (1) There is hereby established a court to be known as the "Court of Appeals of the State of Mississippi," which shall be a court of record.

(2) The Court of Appeals shall be comprised of ten (10) appellate judges, two (2) from each congressional district. . . .

Section 9-4-3. (1) The Court of Appeals shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme court.

The jurisdiction of the court of appeals is limited to those matters which have been assigned to it by the Supreme Court.

The Supreme Court shall prescribe rules for the assignment of matters to the Court of Appeals. These rules may provide for the selective assignment of individual cases and may provide for the assignment of cases according to subject matter or other general criteria. However, the Supreme Court shall retain appeals in cases imposing the death penalty, or cases involving utility rates, annexations, bond issues, election contests, or a statute held unconstitutional by the lower court.

(2) Decisions of the Court of Appeals are final and are not subject to review by the Supreme Court, except by writ of certiorari. The Supreme Court may grant certiorari review only by the affirmative vote of four (4) of its members. At any time before final decision by the Court of Appeals, the Supreme Court may, by order, transfer to the Supreme Court any case pending before the Court of Appeals.

(3) The Court of Appeals shall have jurisdiction to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition or any other process when this may be necessary in any case assigned to it by the Supreme Court.

[Section 9-9-1 establishes county courts in certain counties.]

Section 9-9-21. (1) The jurisdiction of the county court shall be as follows: It shall have jurisdiction concurrent with the justice court in all matters, civil and criminal of which the justice court has jurisdiction; and it shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of Two Hundred Thousand Dollars ($200,000). . . .

Section 9-11-9. Justice court judges shall have jurisdiction of all actions for the recovery of debts or damages or personal property, where the principal of the debt, the amount of the demand, or the value of the property sought to be recovered shall not exceed Two Thousand Five Hundred Dollars ($2,500.00). . . .

Selected Mississippi Rules of Professional Conduct

Rule 2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Rule 3.1 Meritorious claims and contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Rule 3.2 Expediting litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Rule 4.1 Truthfulness in statements to others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b)fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

Rule 4.4 Respect for rights of third persons

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.