Chapter 1



Civil Procedure (Fall 2000 – Professor Norman)

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Text: Yeazell, Stephen. Civil Procedure – fifth Edition. Aspen Publishers, Inc. New York, NY: 2000.

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Procedure- is not concerned with controlling human action, it is the language that lawyers use to communicate.

• Name and date of case.

• Court.

• Identifying SMJ and PJ.

• Pertinent Facts.

• Legal Issues.

• Decision/Reasoning.

o Brief of a dissent or agreement.

• People’s own opinion.

Law is concerned with the ideal of justice, not with achieving it.

A Constitutional Framework for Litigation

1. Personal Jurisdiction

a. The Origins

i. Pennoyer v. Neff (p. 77)

1. Basis for jurisdiction is state sovereignty (notion that state is sovereign over everything within its borders).

a. Personal consent.

b. Physical presence.

c. Resident.

d. Property within the state.

2. Two types of jurisdiction established by Pennoyer.

a. In personam- jurisdiction over the person; power to adjudicate the claims.

i. Personal jurisdiction is obtained when the non-resident is serviced with process while in the state.

ii. Personal Jurisdiction is obtained when the non-resident voluntarily appears before the court.

b. Quasi in rem- gaining jurisdiction over a person by gaining jurisdiction over the property.

i. In rem- proceeding or actions instituted against a thing.

ii. Jurisdiction in quasi in rem is obtained by attaching the non-resident property at the commencement of the action.

3. Service by publication is unconstitutional according to U.S.

a. For personal actions, publication is not sufficient notification.

b. Property in rem or quasi in rem is sufficient notice.

4. Ways to contest personal jurisdiction

a. Special appearance – only to contest jurisdiction.

b. Pre-answer motion. Rule 12(b).

c. Ignore the suit.

ii. Corporations and Personal Jurisdiction

1. A corporation is a fictitious individual created by the law.

a. Corporations can:

i. Commit torts.

ii. Enter into contracts.

iii. Act like a person within the law.

b. Corporations may legally exist outside of their domicile if they establish an agent of service to make them subject to due process.

2. Individuals establish consent to service if they:

a. Conduct transactions,

b. Are transient through a state,

c. Are served through another person within their domicile, in their absence.

b. The Modern Constitutional Formulation of Power

i. Redefining Constitutional Power

1. International Shoe Co. v. Washington (p. 95)

a. Jurisdiction is based on the notion of presence and consent.

i. PJ over a non-resident is obtained when the state proves the non-resident Δ had minimal contacts w/ that state.

b. Minimum contacts

i. Continuous and substantial activity with a claim directly resulting from this activity = General Jurisdiction.

ii. Casual or isolated activity with no related claim = no PJ.

iii. Continuous and substantial activity with no related claim = General Jurisdiction.

iv. Casual or isolated activity with a claim directly resulting from the activity = Specific Jurisdiction.

ii. Absorbing In Rem Jurisdiction

1. Shaffer v. Heitner (p. 104)

a. .

iii. Specific Jurisdiction: The Modern Cases

1. McGee v. International Life Insurance Co. (p. 116)

a. .

2. Hanson v. Denckla (p. 117)

a.

3. World-Wide Volkswagen Corp. v. Woodson (p. 119)

a.

4. Asahi Metal Industry Co. v. Superior Court (p. 129)

a.

5. Burger King Corp. v. Rudzewicz (p. 137)

iv. General Jurisdiction

1. Washington Equipment Manufacturing Co. v. Concrete Placing Co. (p.148)

a.

2. Burnham v. Superior Court (p. 150)

v. The Outer Limits of Jurisdictional Power: Jurisdiction to Determine Jurisdiction

1. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinée (p. 160)

c. Consent as a Substitute for Power.

i. Carnival Cruise Lines, Inc. v. Shute (p. 169)

d. The Constitutional Requirement of Notice.

i. Mullane v. Central Hanover Bank & Trust Co. (p. 175)

e. Self-Imposed Restraints on Jurisdictional Power: Long-Arm Statutes, Venue, and Discretionary Refusal of Jurisdiction.

i. Long-Arm Statutes as a Restraint on Jurisdiction

1. Gibbons v. Brown (p. 192)

ii. Venue as a Further Localizing Principle

1. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd. (p. 199)

iii. Declining Jurisdiction: Transfer and Forum Non-Conveniens

1. Forum Non Conveniens

a. Piper Aircraft v. Reyno (p. 204)

2. Transfer under 28 U.S.C. §§ 1404, 1406, and 1631.

1. Pleading

a. Rival Procedural Systems.

i. Common Law Pleading in Theory and Practice

ii. Chancery and Its Procedure: the Procedural Alternative

iii. Reforming Process

Pleading in a Modern Regime. Subject Matter Jurisdiction of the Federal Courts

f. Power of the federal courts lies in the Constitution (Art. III) and in congress.

i. All courts are limited jurisdiction: subject matter jurisdiction is divided between federal question jurisdiction and diversity of Citizenship.

1. Economic Policy--To reduce traffic on federal docket.

ii. SMJ is not waivable.

iii. SMJ can be contested at any point during the proceedings or in an appeal.

iv. SMJ must be established at the beginning of the case.

v. The court itself can raise SMJ questions (sua sponte).

g. Federal Question Jurisdiction (28 U.S.C. § 1331):

i. Arise under the Constitution, laws, or treaties of the United States (federal question must be the central dispute of the case).

ii. Special Federal Question Jurisdiction

1. Civil Rights;

2. Securities; and

3. Where the statute specifically allows for certain question w/out having to meet other requirements.

a. All statutes would seem to allow for federal question jurisdiction, ▲ federal question issue must be an essential element of the Π’s claim.

b. Frivolous or collateral issues will not support § 1331.

iii. Louisville and Nashville R.R. v. Mottley (p. 217) (KNOW FOR BAR)

1. If a contract exists, and congress passes a statute making it void, the fact that this would both deprive property and due process, makes the statute inapplicable to the contract.

2. Well Pleaded Complaint Rule- A “well pleaded” complaint must show on its face that Π’s claim is based in federal law.

3. Language in § 1331 is interpreted very narrowly compared to the broad language of the Constitution.

h. Diversity of Citizenship; Amount in Controversy; Costs (28 U.S.C. §1332):

i. District courts have original jurisdiction where matter in controversy exceeds the sum of $75,000 (exclusive of interest, legal fees, and costs), between:

1. Citizens of different states;

2. Between American citizens of a state, and foreign citizens;

3. Citizens of different states where foreigners are additional parties.

4. Foreigners admitted as permanent residents are considered citizens of their state.

ii. Exists to prevent bias against out of state residents in state courts.

iii. Diversity Jurisdiction does not mean that a case must be heard in federal court.

iv. How is the minimum amount of $75,000 determined to exist?

1. Good faith of Π.

2. If the award is less than $75,000 court will still uphold judgment, but Π may be sanctioned.

v. Rule 18(a)-

1. w/ one Π and one Δ the $75,000 may be reached by combining multiple claims.

2. Only Π’s claims may be considered in order to meet the minimum.

vi. Joint Interest-

1. When two or more sue as a single Π (ex. Husband and wife dealing w/ house).

vii. Separate Interest-

1. When two or more people must sue the same Δ separately (ex. Two people in a car accident).

viii. Mas v. Perry (p. 229)

1. Π has burden of proving that diversity exists.

2. All Πs must be diverse to all Δs.

3. Diversity of citizenship is based on citizenship at the time that the suit is filed.

4. A domiciliary of a state remains, for diversity purposes, until he formulates an intent to permanently remain in another state.

5. Citizenship (Domicile):

a. Residency of a state; with

b. Intent to remain indefinitely.

6. To change citizenship, both elements of citizenship must change.

7. General Rule- Wife’s domicile changes to that of her husband’s when the husband has state residency.

ix. Saadeh v. Farouki (p. 236)

1. Aliens cannot bring suit against each other in federal court due to the requirement of complete diversity.

x. Corporations (§ 1332(c)(1)).

1. A corporation is considered a citizen where:

a. It is incorporated; and

b. Where it has its principal place of business (dual citizenship).

2. Partnerships hold citizenship in every state where there is a partner.

xi. Decedents and Incompetents (§ 1332(c)(2)).

1. Legal representatives’ citizenship is that of their client.

xii. Direct Action Suits

1. Permit action directly against insurer; bypassing the insured.

2. Insurance companies hold citizenship in the state where the insured resides.

xiii. Legal Certainty Rule

1. Before a case can be dismissed over amount in question, Δ must show to a reasonable certainty that Π cannot recover the full amount.

xiv. Court may still not exercise jurisdiction in such cases as:

1. Divorce or Probate.

i. Supplemental Jurisdiction.

i. Federal Cts. have supplemental jurisdiction over all claims that are so related to the federal claim, that they form the same case or controversy.

ii. Stretches federal jurisdiction to include issues, that if brought independently, would not have fallen under federal SMJ.

iii. Two types:

1. Ancillary Jurisdiction (rule 13) (Allows addition of parties).

a. Ancillary jurisdiction does not apply to original Πs.

b. Jurisdiction over cross, counter, and third party impleader claims.

i. Counter claim- a reverse claim against an opposing party (jumps over v. sign).

ii. Cross claim- brought by any Δ in the suit against another Δ in the original suit (does not jump over v. sign).

iii. Third party impleader-

1. Brought by a Δ against an external third party, but

2. Δ must be liable to Π in order to file third party claims.

c. Power of the court to hear claims that are closely related to the original claim.

d. Federal court has the power to protect property already in its control due to a pending suit.

e. Expanded to cover any incidental claims arising out of the same tr(x).

f. Most often arises out of diversity and counterclaims.

i. Allow for cross and counterclaims to be heard even if this action would destroy original SMJ (ex. Diversity).

1. Π may not sue a third party Δ if no diversity exists.

2. Pendant Jurisdiction (Allows addition of claims)

a. Allows federal court to exercise jurisdiction state law claims when they arise out of the same tr(x) as the federal question of diversity claim.

b. Once a claim is accepted in federal court, other claims may be attached if they are reasonably related, even though alone, they would not meet federal SMJ (Policy: Judicial economy, convenience, and fairness).

c. Pendant jurisdiction can be challenged at any point during the proceedings.

d. United Mine Workers v. Gibbs (p. 244)

i. Expands Pendant Jurisdiction

1. Substantial overlap must exist between state and federal claims.

a. Without regard to how the claims are categorized (fed. or state), are they such that they should be tried together.

2. Discretion- state claim should be dismissed if federal claim is dismissed.

a. Fed. Judges’ decisions are rarely reversed on discretionary matters (ex. Appeals of state claim).

3. If state law dominates the claim:

a. Case should be remanded to state court.

b. Substantiality of claims is a jury question.

i. If federal claim is secondary, state claim could be dismissed.

4. If attachment of claims would lead to jury confusion, case should be remanded to state court.

j. Removal.

i. Jurisdictional statutes give Πs an initial choice of courts for cases in which federal and state court jurisdiction overlap.

ii. ▲ congress has given Δs the power to question Π’s choice through removal.

iii. If state court did not have jurisdiction and the case is removed to federal court, federal court may still have jurisdiction over the claim.

1. Removal Procedures (§ 1446)

2. If claim is originally taken to state court, Δ may choose to remove to fed. court.

3. Fed. courts must have original jurisdiction to allow for removal.

4. Case can be remanded back to state court @ the discretion of the federal judge to facilitate:

a. Economy

b. Procedure

c. Convenience

d. If it is not a federal question and there is no question of fairness, there is no removal even if diversity exists.

e. 28 U.S.C. § 1446

i. If removed to federal court:

1. A complete copy of state case proceedings must be attached to removal claim.

2. Must be filed within 30 days of Π’s original petition.

3. Π may file a motion for remandment to state court on basis of impropriety.

5. Removal does not expand litigation.

6. Removal restrictions:

a. Cannot remove to a state court from a fed. court.

b. Cannot remove from one state court to another state’s court.

c. Cannot remove between districts within one state.

d. Removal must be to a fed. court within the same state and district as Π’s original choice of state court.

e. Venue rules do not apply to removal.

f. All Δ’s must join in the petition for removal

i. Except where Π fraudulently includes Δs that would prevent removal.

7. Caterpillar, Inc. v. Lewis (p. 252)

a. A district court’s error, in failing to remand a case improperly removed, does not prevent ajudication if, the jurisdictional requirements are satisfied at the time of judgment.

2. The Erie Problem

a. State Courts as Lawmakers in a Federal System.

i. States rights v. Federal intervention.

ii. In an issue involving a state law question, is state or federal law applied?

1. § 1652 Rules of Decision Act-

a. The substantive laws of the several states will apply in federal court unless it is a matter involving the Constitution, treaties of the United States, or acts of Congress.

2. Are state caselaw precedents valid law in federal courts?

3. What procedural law is valid in federal courts?

iii. Swift v. Tyson (p. 263)

1. Only statutory law would be used from the states.

2. State procedural law would be used in federal court.

3. General Federal Common Law-

a. Where there was no state statutory law covering the matter and it wasn’t a federal question, the judge was free to decide as he saw fit to resolve the issue.

4. This led to great inconsistency in judgments, and led to increased forum shopping.

iv. Federal Rules of Civil Procedure (1938)-

1. State procedural law could no longer be used in federal court.

v. Erie Railroad v. Tompkins (p. 265)

1. Erie was based on a Constitutional question of the X amendment.

a. Amendment X- The powers neither given to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

b. After 1937, this amendment was reduced to a truism.

2. In diversity cases, the Rules of Decision Act will apply.

a. State caselaw is now valid in federal court (reversing the use of the General Federal Common Law)—preserving state autonomy.

b. Where there is no state substantive law to cover the issue in question, federal judge must rule to the best of his knowledge, according to the way the highest state court would rule on the issue.

3. Federal Procedure will be used.

4. Klaxon v. Stentor (p. 272)

a. Law of the state where the court sits must apply.

b. ▲ in Erie, the NY district court ruled on: NY Conflicts of Law-- which stated that the state’s substantive law where the incident occurred should be used—▲ PA law would apply.

5. Problems arising from Erie Doctrine:

a. Rampant forum shopping.

b. Inconsistency in decisions between federal courts and state courts sitting within the same district.

i. Note on Equity Jurisprudence

1. Erie failed in its attempt to correct a problem of fairness by creating a dichotomy of substantive and procedural law.

2. No right should exist without an adequate remedy to enforce that right.

3. Equity provides a remedy where the common law fails.

a. Injunctions are equitable remedies.

b. Damages are legal remedies.

4. No right to a trial by jury in equity, jury trials are only for matters arising under a common law question.

b. The Limits of State Power in Federal Courts.

i. Interpreting the Constitutional Command of Erie.

1. Guaranty Trust Co. v. York (p. 276)

a. Guaranty does not overrule Erie completely.

b. Outcome in federal court should not sway substantially from outcome in a state court.

c. Is the outcome of the case affected when a federal court disregards a law of a state that would be controlling if tried in state court?

i. When state procedural law vitally affects the outcome, it will be used in federal court.

d. This rule would render the Federal Rules of Civil Procedure useless.

2. Byrd v. Blue Ridge Rural Electric Cooperative (p. 281)

a. In a direct conflict between a state and federal procedure, the state procedure may/may not nullify the federal rule.

b. Courts say that outcome determination is not the only consideration—other factors apply to determine if state law should apply.

i. Factors:

1. Existence of a strong federal interest.

2. Whether applying federal law is outcome determinative.

3. How closely related is state procedure to the state’s substantive law.

c. Byrd reduces the influence of York’s “outcome-determinative” test.

ii. De-Constitutionalizing Erie.

1. Hanna v. Plumer (p. 284)

a. In a direct conflict between a state procedure and a Federal Rule of Civil Procedure, the federal rule will prevail. (Reversal of York in part).

i. Applies even if the state procedure would be outcome determinative.

ii. Same application for the Federal Rules of Appellate Procedure.

iii. Same application for Federal Statutes.

b. In a direct conflict between a state procedure and a federal procedure, which is not a Federal Rule of Civil Procedure or a Federal Statute:

i. Apply the “Erie Test.”

1. If these are present:

a. Inconsistent Results,

b. Forum Shopping,

2. state procedure is applied.

iii. Determining the Scope of State Law: An Entailment of Erie.

1. Federal court accepts rulings from state supreme courts.

a. Task of the federal judge is to determine how the state supreme court would have ruled if there is no caselaw surrounding the matter.

i. He may use:

1. Dicta from the state supreme court,

2. Decisions from lower courts,

3. Decisions from other federal courts,

4. Treatises and Law Reviews, and

5. Certification to the state’s supreme court if it is available.

a. State Supreme Court does not have to accept the certification.

The Process of Litigation

2. Incentives to Litigate

a. Litigation in the United States at the End of the Twentieth Century.

i. Remedies- the acts that will be required of the Δ if the Π prevails in proving his case; seek to cure the legal harm.

ii. Forms of relief (most common to least common):

1. Damages (substitutionary remedies),

2. Specific Performance

3. Declaratory Relief

b. Substitutionary Remedies.

i. Five types:

1. Compensatory- to compensate for the actual harm suffered; to make Π whole from the effects of the wrong committed against them.

a. General Damages

i. Damages that are necessitated by the wrong to Π.

1. Pain and suffering

2. Mental anguish

3. Emotional distress

4. Embarrassment

5. etc . . . .

b. U.S. v. Hatahley (p. 315)

i. Presentation of previous awards in similar cases, to the jury, is not allowed in federal court.

ii. Loss due to deprivation of property is limited to actual losses incurred only over a period of time, which is reasonable to replace the property.

iii. Pain and suffering is evaluated on an individual case by case basis.

c. Ex. Damages awarded for lost future wages, are awarded as a present value of a future amount.

i. $400,000 in lifetime wages would award a present value of $98,000.

2. Punitive- to punish Δ and deter repeated behavior, and to set an example for the community.

a. General Rule- Δ’s ability to pay is not considered in assigning punitive damages.

b. Some states make an exception in considering ability to pay in order to determine amount of punitive damages.

c. A federal judge may order a remittature where the award may seem inappropriate. If Π does not accept the reduction in the award, judge may order a new trial.

d. Honda Motor Co. v. Oberg (p. 323)

i. Law preventing a review of damages is unconstitutional.

ii. Procedural Due Process- a state must provide for judicial scrutiny of punitive awards and allow for a reduction of such awards.

e. BMW of North America v. Gore (p. 326)

i. Substantive Due Process- the test for the standard of a review of damages.

1. Amount of damages as compared to the degree of reprehensibility (cannot be gossly excessive).

2. Consider disparity between the harm or potential harm, and the compensatory damages awarded.

3. Consider the difference between the amount awarded, and those awards of similar cases.

3. Liquidated- Damages previously agreed to.

a. Ex. Damages set forth in contracts.

4. Unspecified- Damages not previously agreed to.

a. Ex. Damages awarded--not previously agreed to in a contract (unrealized profits resulting from the breach).

5. Special- Actual damages incurred, but not necessarily resulting from the wrong, they result from special circumstances of the case.

a. Ususally proven by documents

i. Hospital/medical bills

ii. Personal property estimates

iii. Etc . . . .

ii. Seek to provide Π w/ a reasonable substitute.

iii. Usually in the form of monetary damages.

iv. Make up most remedies awarded in the U.S. because most suits seek damages (ex. Can’t use a specific remedy to replace a severed limb).

c. Specific Remedies- seek to restore directly and specifically what the Δ has taken from the Π.

i. Require a court order.

ii. Types:

1. Specific Performance- Usually available only where monetary damages are inappropriate.

a. Policy- courts avoid specific performance because they may not have the time to monitor specific performance.

2. Equitable Relief- only available in the absence of an adequate remedy at law.

a. Injunctions- most common form of equitable relief.

i. Prohibitive- prevents someone from acting.

ii. Mandatory- forces someone to act.

b. Failure to comply subjects individual to fines or imprisonment under contempt.

iii. Rule 18(a)- allow joinder of all suits in equity by one Π.

1. If there is joinder of legal and equitable remedies, they will both be tried before a judge in equity.

2. Trial in equity does not have a jury.

iv. Sigma Chemical Co. v. Harris (p. 334)

1. Injunctions do not have to be awarded if there is an adequate legal remedy.

2. In order to award equitable relief, Π must show that money damages are insufficient, and that they would suffer irreparable harm if the injunction were not granted.

d. Declaratory Relief- asks the court to declare the rights and duties of the respective parties in order to determine whether further relief is warranted.

i. 28 U.S.C. 2201- There must be an actual controversy, which is usually provided for by a statute or rule.

e. Financing Litigation.

i. Fee Spreading

1. The American Rule

a. Parties pay for their own attorney.

2. Insurance and the Fee Structures

a. Insurance will normally provide defense fees as a benefit to the insured.

i. Insurance will not provide for plaintiff’s fees for insured; therefore,

b. Three Fee Structures for Π’s fees:

i. Fixed Fees-

1. Routine legal services

a. Drafting a will

b. Uncontested divorce

c. Act of sale, etc . . . .

ii. Hourly Rates-

1. Usually there is an advance from the client, which is replenished when the balance runs low.

2. Monthly billing—large corporations.

3. A bill sent following the end of litigation.

iii. Contingent Fee-

1. Fees contingent on the outcome of the litigation.

2. ABA Provisions Rule 1.5(c)-

a. Fee arrangements shall be in writing.

b. Will show the method that shall accrue to the attorney.

c. Attorney shall send notice of the outcome to the client.

3. Exceptions to contingency fees:

a. Domestic relations- philosophy of law favors reconciliation.

b. Criminal matters- there is no recovery in criminal cases.

4. Objections to contingency fees:

a. Favor increased litigation.

b. Conflict of interest for the attorney in the recovery.

c. Can encourage a “gambling spirit” in the attorney.

d. Encourages divergent interests between client and attorney.

5. Advantages to contingencies:

a. Π may not be able to afford an hourly rate.

b. The poor can now afford the best attorneys.

3. Public Subsidies and Professional Charity

a. Helps individuals who cannot afford legal fees either because they have no insurance, or cannot otherwise afford any of the fee structures.

ii. From Fee Spreading to Fee Shifting

1. British Rule

a. Loser pays for both attorneys.

2. The Common Fund

a. Class Action Lawsuits- where a class benefits from the efforts of a small group, the recovery pool compensates the small group for the benefit received by the entire class.

i. Not fee shifting; fees are shared by all members of the class.

3. By Contract- prearranged payment agreements between parties that define stipulations.

4. By Common Law- Direct reimbursement for the other party by common law

a. Used where Π is found to have brought a frivolous suit.

5. Statute- Direct reimbursement for other party by statute.

a. Generally awarded in any action, which has resulted in the enforcement of an important right affecting the public interest.

iii. Fee Shifting and Settlement

1. Fee shifting may induce Π to spend more time preparing thereby increasing his chances of winning against Δ. Δ may choose to settle prematurely. ▲ two procedural mechanism to safeguard Δ:

a. Rule 68.

i. Policy:

1. To reduce unnecessary litigation.

2. To reduce costs.

3. Promotes settlement

ii. If Π declines Δ’s offer and is awarded less than that offer at trial, Π has to pay for Δ’s attorney’s fees incurred from the date of the offer.

b. Separating Lawyer and Client.

f. Provisional Remedies.

i. Preliminary Injunctions and Temporary Restraining Orders; the basic problem.

1. Immediate remedies awarded in the pretrial stage on merits.

a. Problematic because they will often be based on incomplete information, and the court will often be asked to act without the benefit of the adversarial exchange that would accompany a trial.

2. Steps to Award Injunctions:

a. Temporary Restraining Order (TRO) Rule 65(2)(b)-

i. Only awarded for a limited time; it expires on its own.

ii. Ex parte- “by a single party;”

1. No hearing;

2. No opportunity for the other party to present their side;

3. No notification to the adverse party.

iii. To award an ex parte TRO:

1. Π must show urgency (ex. Suffer irreparable harm if not granted).

2. Have evidence that there has been an attempt to inform the adverse party.

iv. Contradictory TRO

1. Injuncted party contesting the restraining order.

b. Preliminary Injunction

i. Judge sets time for hearing.

ii. Granted by a judge prior to the termination of the TRO.

iii. Both parties are present.

c. Permanent Injunction

i. Decided by a judge at the hearing.

3. Attachment and Garnishment

a. Rule 64- Available when the thing in contention is of interest to Π.

b. Attachment-

i. Seizure of Δ’s property before judgment is rendered at and early stage of the proceedings.

ii. For the purpose of providing security to Π.

iii. Makes it possible to collect judgment not yet awarded.

c. Garnishment-

i. Seizure of a debt owed to Δ by a 3rd party.

ii. Where 3rd party pays debt not to Δ, but rather to Π.

1. Ex. Garnishment of wages.

iii. Controversial—seizure of property without due process.

ii. Provisional Remedies and Due Process.

1. Fuentes v. Shevin (p. 369)

a. Procedural due process requires that a party whose rights are being affected, be given a meaningful opportunity to be heard; therefore they must be notified.

b. Exceptions:

i. If the state does not have any part in the attachment, then the XIV amendment does not apply.

ii. If directly necessary to secure important government or public interest.

iii. If there is a special need for prompt action or there are extraordinary circumstances.

iv. State keeps strict control of legitimate force.

1. Judge decides whether seizure is appropriate.

v. If a waiver is given at a hearing.

3. Pleading

a. Rival Procedural Systems.

i. Common Law Pleading in Theory and Practice

1. Historically, the common law court used a system of writs.

a. Writs were available to state a cause of action.

b. Used to refine each case into a single issue.

c. If no writ was available for a certain case, then there was no cause of action.

d. Types of Writs:

i. Covenant.

ii. Assumpsit.

iii. Trespass.

iv. Replevin.

v. Trover, etc . . . .

2. Preliminary Actions

a. Pleadings

i. Historically in the courts of equity, no discovery was allowed.

1. In 1938 w/ the Federal Rules of Civil Procedure, the “surprise” element was removed.

ii. Pleadings Serve Four Purposes:

1. Identify and narrow issues for trial.

2. Give notice to the court and to all parties of the substance of issue.

3. Create a permanent record in alignment w/ res judicata.

4. To dispose of cases w/out trial when applicable.

iii. An “issue” has been joined when the pleadings are over.

iv. Types of Pleadings

1. Submission Suit- declaration of a cause of action filed by Π.

2. Rejoinder

a. Demurrer- admission of fact, however Π has no claim for relief. Filed by Δ; or,

b. Directly challenge the facts.

3. Surrejoinder- Π’s answer to Δ’s rejoinder.

b. Discovery

i. Purpose of discovery is to acquaint the lawyers with the facts and eliminate surprise.

ii. Pleadings do not set forth the facts, discovery does.

iii. Discovery is an expensive process.

c. Pretrial Sequence

i. Legal issues are refined.

ii. Pre-trial conference is set.

1. An extensive discussion of the case

a. Factual and legal issues are dicussed.

b. Settlement possibilities are discussed.

2. At the end of the pre-trial conference, the lawyer should be prepared to try the case.

3. Formal Proceedings

a. Trial

i. Testimony

ii. Formal Entry of Evidence

ii. Chancery and Its Procedure: the Procedural Alternative

1. Common law had specific writs, and pleading had to fit into a specific writ. Equity used an interrogatory process.

2. Common law courts used no written records and strict rules of evidence. Equity only used a written record.

3. Ultimate fact finder in law was the jury. In equity, it was the chancellor.

4. Common law remedies consisted of money damages. Equity provided injunctive relief.

5. Sanctions:

a. In Law

i. Seizure.

ii. Garnishment.

b. In Equity

i. Jail (for contempt).

iii. Reforming Process

1. Field Code of Procedure (1849 NY)-

a. First codified rules of procedure.

b. Combined courts of law and equity.

c. Abolished common law writs.

d. Provided one form of action – Civil Action.

e. Simplified pleadings; established Fact Pleading.

i. Precise and concise language.

ii. Fact Pleading Jurisdiction

1. Π must plead specific facts in order to have a cause of action.

2. Federal Rules of Civil Procedure (1938)-

a. Made pleading easier.

i. Allowed for Notice Pleading of Π’s case, giving Δ adequate notice of suit.

ii. Notice Pleading Jurisdiction

1. Π must only plead a short summary of the cause of action.

2. Allows for pleading a conclusion

a. Ex. Stating that the Δ was negligent.

b. It was adopted using the NY Field Code as a Model.

c. Rule 7- defines pleadings allowed, and forms of motions.

d. Rule 8- defines method of pleading.

e. Rule 9- pleading specific matters.

i. If fraud is present in the allegations or the claim, it must be stated in the pleading.

ii. Special damages must be specifically pleaded.

iii. Allows civil and admiralty suits to be merged into one cause of action.

1. Π can now file a civil COA in a court of Admiralty, and avoid a jury trial.

f. Rule 38- Π must submit an Affirmative Motion in order to get a trial by jury.

i. If he fails to do this, it is assumed that he waives this right.

ii. Once demanded, it cannot be withdrawn.

iii. Just because diversity exists, does not mean that there is a right to trial by jury.

b. Pleading in a Modern Regime.

i. Ethical Limitations and Disfavored Claims

1. Ethical Principles as a Limitation

a. Rule 11-

i. Regulates the ethical conduct of the attorney and client.

ii. Applies only to the attorney’s knowledge at the time of filing.

iii. Requires signatures on all documents presented to the court.

iv. Sanctions

1. Initiated by motions.

2. Nature of the sanctions.

a. To punish for unethical practices with the court.

v. Business Guides v. Chromatic Communications Ent. (p. 424)

1. Filing of a suit without reasonable belief in its validity or without making reasonable inquiry into the facts, violates Rule 11 (contempt).

vi. Religious Technology Center v. Gerbode (p. 427)

1. Filing of a suit without reasonable inquiry into the law, or an accurate statement of the law, violates Rule 11.

2. Disfavored Claims

a. Rule 8(e)(2)-

i. Allows for duplicity of claims.

1. “A party may set forth two or more statements of a claim or defense alternately or hypothetically [and a ] party may also state as many separate claims or defenses as he has regardless of consistency.”

2. Ex. As a result Δ may deny that she ever had a contract with Π, and at the same time assert that she kept her side of the bargain.

ii. Allocating the Elements

1. Pleading

a. Π has to raise the elements of the claim.

i. Ex: Negligence:

1. Occurrence of the event.

2. Breach of duty (allegation of evidence).

3. Causation.

4. Damages.

b. If Π fails in pleading these four elements, the case will be dismissed.

c. If the state allows for consideration of contributory negligence, and it is found to exist, the case will be dismissed.

2. Production

a. Presenting specific evidence allowing the case to go to a jury.

i. Preponderance of Evidence Rule- Π has the burden of establishing a Prima Facie case.

b. Π rests when he believes that sufficient evidence exists.

i. Rule 50- Judgment as a Matter of Law (a.k.a. Motion for Directed Verdict).

1. When either party believes as a matter of law that the facts require a decision in their favor.

2. This motion must be made during the trial in order to preserve the right to move for a Judgment Non Obstante Veridicto (J.N.O.V.) after the jury verdict has been rendered.

3. Persuasion

a. Only relevant after all information is in.

b. Concerned w/ convincing the jury to accept and make a judgment for one side.

c. Role of the Lawyer.

i. Requirements for Licensing

1. Have J.D.

2. Pass State Bar Exam

3. Practicing w/out a license is a criminal offense

a. However, people may represent themselves w/out a license.

ii. The lawyer is an officer of the court.

1. The practice of law is a privilege.

iii. The lawyer creates the framework for the trial.

1. Responsible for the burden of production.

iv. Trial of a Case

1. Begins w/ a litigious event.

2. Have to accurately reframe the facts w/in the scope of the law.

a. Pleadings.

b. Motions.

c. Discovery.

d. Trial.

d. Responding to the Complaint

i. Pre-Answer Motion

1. Δ may file a pre-answer motion, which may dismiss Π’s claim.

a. Ex parte- made to a judge without the opposing party present.

i. Ex. Motion for an extension.

b. Contradictory- a motion contested by the adversary.

i. Contradictory motions are not filed ex parte.

ii. If there is adversary contention,

1. Contact the adversary, and:

a. Request a joint motion, or

b. File an ex parte motion stating that the opponent doesn’t have an objection.

2. If adversary does not agree:

a. Prepare motion with a brief statement of the relief you are requesting.

b. File a Notice of Motion- gives all parties notice of the filing of the motion.

c. Motion is heard by the court, and the judge may or may not allow counsel to argue orally.

ii. Answer

1. Denials

a. Δ may deny certain parts of the claim and affirm other parts.

2. Affirmative Defenses (p. 465)

iii. Reply

iv. Amendments

1. Amended (Rule 15(b))- includes matters before filing the complaint.

2. Supplemental (Rule 15(d))- includes matters after filing the complaint.

e. Drafting a Complaint

i. Rules 7, 8, 9, 10, and 11.

ii. Form of a Complaint (Rules 10(a) and 7(a))

1. I identify:

a. Court and venue;

b. Π and Δ;

c. Civil Action Number; and

d. Section Number (identifies magistrate that case was originally assigned to).

2. II: Establish how the court has SMJ.

3. III: Background information.

4. IV: Specific facts

5. V: Plead elements of the COA.

6. VI: Outline any Special Damages.

7. VII: Outline any Compensatory Damages.

8. VIII:

a. Prayer for desired outcome,

b. Request for trial by jury, if desired,

c. Attorney’s contact info., signature, title, and bar roll #.

9. IX: Service instructions.

f.

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