美国民事诉讼管辖权

,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,Chapter 3 美国民事诉讼管辖权,本章教学安排,学时：10,授课方式：讲课、讨论、模拟法庭,具体安排：8学时授课，布置模拟法庭的准备工作，学生准备4周，用2个学时开模拟法庭。,本章教学目的与要求,要求学生能了解并掌握美国法院体系,要求学生学会撰写起诉状，上诉状,要求学生能运用美国民事诉讼程序进行模拟法庭的训练与准备,要求能结合具体美国法律分析具体案例,一、Court systems in the United States,Fifty-two separate court systems:,Fifty states+the District of Columbia+the federal court system.,The federal courts are not superior to the state courts.,1、Hypothetical state court system,State Supreme Court,State Appellate Courts,State Trial Courts,of General,Jurisdiction,State Trial Courts,Of Limited,Jurisdiction,New York Civil Court Structure,State High Court,Court(s)of Last Resort,Court of Appeals,Intermediate CourtIntermediate Appellate Court(s),Appellate Divisions of the Supreme CourtCounty Courts,Trial Court,Court(s)of General Jurisdiction,Supreme CourtsCounty CourtsSurrogates CourtsFamily CourtsCourt of ClaimsDistrict CourtsNew York City Civil CourtsCity CourtsTown CourtsVillage Courts,总结：A Typical State Court System,Three-tiered model:,Trial court-determines both questions of facts and questions of law;,Appellate court,State supreme court,United States Supreme Court,Trial courts:general and limited jurisdiction,Trial court has original jurisdiction;,General jurisdiction:,Limited jurisdiction:family court;probate court;criminal court;municipal court;small-claims court,Appellate court/courts of appeal,Appellate jurisdiction,The appellate courts look at questions of law and procedure,not questions of fact.,2、The Federal Court System,The trial courts;,Intermediate courts of appeal;,The US Supreme Court.,District Courts,The trial court which has general jurisdiction.,Every state has at least one federal district court within its border.,District courts have original jurisdiction in federal matters,Courts of Appeal,Congress has established 12 judicial circuits+the federal Circuit.,The circuit courts hears only appeals from the district courts located within its respective circuit.,Supreme Court of the U.S.,9 judges appointed by the president of the U.S.and confirmed by the Senate.,Trial jurisdiction;,Appellate court-review any case decided by any of the federal courts of appeal;cases decided in the state supreme courts that involve the federal Constitution,treaties,or laws.,U.S.Supreme Court Justices,二、美国法院管辖权的划分,联邦：有限制的管辖权,州：一般/普遍的管辖权,管辖权的根据,Jurisdiction over person,Jurisdiction over property,Subject matter Jurisdiction,(一)Personal jurisdiction,A court has Jurisdiction over:,any resident of the judicial district even if the or she is temporarily out of the area on a business trip;,Any business within the judicial district,even if the business has its main plant or office elsewhere;,Anyone served with a summons in the judicial district,unless that persons presence was obtained by fraudulent means;,A court can exercise Jurisdiction over a nonresident person or business by using the long-arm statute:minimum contact;traditional notions of fair play and substantial justice are not offended;.,2、Jurisdiction of Federal Courts,1.Federal Questions Lawsuits:any case with a legal question that involves the federal Constitution,treaty or Statute.,No minimum dollar amount in controversy is required when a case involves a federal question.,2.Diversity of Citizenship Lawsuits-Controversies between:,(1)citizens of different states;,(2)a foreign country as plaintiff and citizens of the same or different states;,(3)citizens of a state and citizens of a foreign country.,(4)amount:over,$,75,000 or more,(5)excluded a state matter:divorce,(7)which law applied,Landmark case:Erie R.Co.v.Tomplkins,Supreme Court of the United States,1938,304 U.S.64,58 S.Ct.817,82 L.Ed.1188.,3、Concurrent versus Exclusive Jurisdiction,Concurrent jurisdiction:,Exclusive Jurisdiction:,三、Judicial Procedures:,Adversary system;,Plaintiff;defendant,The judge plays an unbiased and mostly passive role.,1.Pleadings,A pleading is a document written by one of the parties to the lawsuit and sent to the other party and to the court so it can be included in the judges case file,which is a public record.,Any person who is a party to a lawsuit typically has the opportunity to plead his case before a trial court.,Complaint or petition,Answer or response,Counterclaim,Reply to counterclaim,Cross-claim,Answer to cross-claim,Third-party complaint,Third-party answer,2.process,Process is a document that comes from the court and is signed by the judge or other judicial official:it is issued,served and filed.,3.Choices available after receipt of the Summons and Complaint,4.Discovery,The process of obtaining information from the opposing party or from witnesses.Discovery includes gaining access to witnesses,documents,records and other evidence.,5.Dismissals and Judgments before trial,6.Pretrial Hearing/Conference,7.The Trial,(1)Jury Selection,(2)Opening Statements,Both attorneys are allowed to make opening statements concerning the facts that they expect to prove during the trial.,(3)Rules of Evidence,-ensure a fair hearing,Rules on the admissibility of all evidence,which must be,material,relevant,and,reliable,.,Cases are decided by both direct and circumstantial evidence.,Plaintiffs Case,Burden of proof;,To witness:Direct examination;Cross-examination;Redirect examination;,Witness normally do not hear each testify to prevent collusion or to prevent the tainting of the evidence being presented.,After the last of the plaintiffs witnesses has been examined,the plaintiff rests its case.,Defendants Case,Defendants attorney then presents the evidence and witnesses for its case.,Direct examination-cross examination-redirect examination-defendants rests its case.,Burden of Proof,The plaintiff has the burden of proof.,Civil courts:two standards;,Courts of law:preponderance of the evidence;,Courts of equity:clear and convincing evidence.,Criminal courts:one standard.,Beyond a reasonable doubt,(4)Motions for Directed Verdicts,After the plaintiffs case has been presented,the defendants attorney may ask the judge to direct a verdict-rarely granted.,After the defendants case has been presented,either attorney may move for a directed verdict.,Granted;,Denied-proceeds to a jury verdict.,(5)Closing Argument,After both sides have rested their cases.,each attorney presents a closing argument,urging a verdict in favor of her client.,Plaintiffdefendant-plaintiff,(6)Jury Instructions and Deliberations,The judge instructs the jury in the law that applies to the case.-charges,The jury deliberate and deliver a verdict.,(7)Jury Verdict and Judgment,The jury delivers its verdict;,The judge sings the document;,The judgment names the prevailing party and the amount to be paid.,(8)Motion for a Judgment Notwithstanding the Verdict/J.N.O.V.,After the jury returns the verdict,a motion for a judgment notwithstanding the verdict van be filed with the trial judge to overturn the jurys verdict.,(9)Motion for a New Trial,At the end of the trial,the losing party can move to set aside the adverse verdict and to have a new trial.,The verdict was in error;,Discovered new evidence;,Misconduct by the participants during the trial;,Judges error.,(10)The Appeal,A notice of appeal must be filed within the prescribed time.,The appellant,The appellee,六、The Judiciary,1.State Judicial Selection Procedures,By election;,By merit,2.Federal Judicial Selection Procedure,The president nominates a person for the vacancy from the list of candidates;,The Senate either confirm or denies the appointment.,Questions,1.Marvin,a resident of Alabama,was walking nearing a busy street in Birmingham when a large crate fell off a passing truck and hit him.Marvin received numerous injuries that resulted in large medical expenses and a great deal of pain and suffering.He lost six months of work.He wants to sue the trucking firm for,$300,000.The firms headquarters is in Mississippi,although the company does business in Alabama.Should Marvin bring his lawsuit in an Alabama state court,a Mississippi state court,or a federal district court located in Alabama or Mississippi?,