Table of Contents Civil Procedure Overview p. 2 Contempt p. 3 Due Process p. 4-5 Remedies: Provisional Relief p. 6-7 Remdies: Final Relief p. 8 Enforcing Judgment p. 8 Complaints/Pleadings p. 9 Amending the Pleading p. 12 Answers/Motions/Affirmative Defenses p. 14 Joinder p. 15 Intervention p. 17 Counterclaims/Crossclaims/Impleader/Interpleader p. 18 Discovery p. 20 Judge/Jury p. 22 Sanctions (Rule 11) p. 23 Summary Judgment p. 25 Controlling/Overruling Jury p. 28 Personal Jurisdiction p. 31-37 Venue p. 38 Removal p. 39 Forum Non Conveniens p. 40 Notice p. 41 Subject-Matter Jurisdiction p. 42 Supplemental Jurisdiction p. 43 Issue Preclusion p. 46 Claim Preclusion p. 48 Attorneys’ Fees & Marek p. 51 Policy: Rules & Standards p. 53 Policy: Judicial Management p. 54 1 PROCEDURAL RULES & JUDICIAL POWER Three philosophies governing procedure: (similar to debate about rules v. standards) “Justice is served by predictable procedure”: It’s a predictable system, regardless of how it impacts individuals VS. “Procedure is the servant of justice”: context of the rules should matter and take into context The distinction between procedure and substance is not meaningful 1. Jurisdiction most important 2. What is the law that is applied in a federal court action? (Federalism) 3. Pleading There has been a movement away easy, liberal pleading standards 4. All Forms of Joinder 5. Discovery 6. Pre-trial adjudication/Summary Judgment how to get rid of cases before trial 7. Trial and Jury Control Procedures 8. Trilogy of Post-Trial Motions: New Trial, Directed Verdict/Judgment as Matter of Law, and JNOV or Renewed Judgment as Matter of Law 9. Appeal 10. Former Adjudication: Res Judicata/Claim Preclusion, Collateral Estoppel/Issue Preclusion Cognizability (whether law will give relief for actions complained of) Cause of action: facts match up to elements of cause of action Demand Letter (maybe) either mediation or alternative dispute resolution (ADR) Personal jurisdiction for defendant Pick forum state Which state has subject matter jurisdiction Venue (which geographic section of the state to bring the case, typically either where alleged action took place or where D resides) Notice to D of commencement of action (due process requires) Check long-arm statute of the state to make sure that D can be sued for torts committed by D in another jurisdiction (p. 186) Draft complaint in accordance with Rules of Civil Procedure for jurisdiction where complaint is being filed (if federal court, then Federal Rules) Check statute of limitations Ensure D receives service of process Consider whether to file joinder of causes of actions (joinder of claims in federal court) to raise multiple causes of action and/or joinder of parties to name more than one D in complaint D can file motion to dismiss for failure to state a cause of action D can file an in answer, in which s/he states affirmative defenses (defenses Ds have to Ps’ causes of action) D may file counterclaim against P for damages or relief Impleader or third-party practice (complaint for indemnification against a third party responsible for D’s actions ; impleaders may have claims against each other, cross-claims May be necessary parties, intervention, and class actions = more complex joinder issues If pleadings survive initial motions, parties then engage in discovery Interrogatories, depositions, requests to inspect documents Lawyers must be familiar with both federal rules, local rules, and standing orders of judges Burden of production: party with burden of proof (usually P) must have sufficiency of evidence for each element of at least one cause of action If D feels P has not sufficiently met his/her burden, can move for judgment as a matter of law, or directed verdict If P survives motion for judgment as matter of law, P must persuade factfinder by preponderance of evidence (burden of persuasion) After discovery, can be motion for summary judgment by either side, but usually D Renewed judgment as matter of law (or JNOV) Trial After trial, verdict becomes judgment Remedies include monetary award, injunctive relief -- temporary restraining order (prior to trial), preliminary injunctive (prior to verdict), permanent injunction (after trial) Appeal to intermediate, appellate court, and then supreme court Party can file an interlocutory appeal, but not appeal the decision necessarily except as indicated below Once final determination, res judicata applies, meaning the matter has already be adjudicated and decided, even if P wishes to bring another claim (say, negligence instead of battery) on the same facts; aka claim preclusion If an issue resolved in prior proceeding and becomes relevant for subsequent proceeding, the prevailing party in prior case can collaterally estop losing party from denying resolution of prior issue; known as issue preclusion (p. 192) 2 CONTEMPT Enforcement of Court’s rulings. Demonstrates how procedure ultimately allocates power within system of law. WALKER V. CITY OF BIRMINGHAM (U.S. 1967) (p. 165): City obtained ex parte TRO to forbid civil rights leaders to participate in or encourage demonstrations of Birmingham’s racial segregation. King arrested during demonstrations, sentenced to 5 days in jail, and fined $50, along with other leaders. At contempt hearing, Ps challenged constitutionality of injunction because vague and overbroad, and restrained free speech. Ps also challenged Birmingham parade ordinance process because previously administered in arbitrary and discriminatory manner. Holding: The parade ordinance was not void on its face, and the injunction was not void on its face; therefore, the injunction and resulting contempt convictions are upheld. “No man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.” Collateral Bar Rule: Noting that MLK had not moved for injunction to be dissolved or taken further steps to apply for permit, the Court refused to consider the constitutional questions , invoking collateral bar rule: if an individual violates a court order, he or she is thereafter barred from challenging it Dissents (Warren, Brennan, Fortas, Douglas): 1. Ps not acting as judges in their own case; rather, violating injunction to challenge its constitutionality is akin to violating a statute for the same reason. a. In fact, some cases require Ps to violate the statute in question in order to establish their standing to sue 2. Birmingham parade ordinance unconstitutional on its face: different procedures for different applicants, namely applicants with whose views city commission disagree amounts to censorship of free speech 3. Court should not place seal of approval on gross misuse of judicial process 4. Shows conflicting philosophies: Justice is Served by Predictable Procedure vs. Procedure should bend in the interests of justice. 3 DUE PROCESS, COST-BENEFIT ANALYSIS, AND JUSTICE The Values of Process and Elements of a Hearing Essence of due process = right to be heard in a meaningful manner at a meaningful time before being deprived of life, liberty or property, usually the latter –“a grievous harm” Rules/Features of Due Process: 1. Only government obligated to guarantee due process 2. Notice & Opportunity to be Heard: “At a meaningful time and in a meaningful manner” (Boddie) 3. Whether certain process is due will depend on circumstance, whether P will suffer “grievous harm” 4. Process due: a. Usually pre-deprivation hearing where party facing deprivation can challenge evidence against him/her b. Access to a lawyer will depend c. Whether filing costs, etc will be waived Analysis: 1. Deprivation: whether 5th Amendment or 14th Amendment implicated 1. Is the government actor? (Cannot bring due process action against private citizen) 2. State or federal government federal govt is 5th amendment; state govt is 14th amendment 2. Is there a right at stake? – Life, liberty, or property 3. What process is due? 3-part Matthews test 1. What private interests are at stake? 2. What is countervailing government interest in curtailment? 3. The amount of error to be allowed - (could be similar to one of those cases) Due Process: Policy Debates Process Values of Administrative Procedures (Mashaw, p. 46) o Individual dignity o Equality o Fairness Value of Accuracy in Adjudication (Kaplow, p. 53) o Procedure has value but should be an ultimate cost-benefit analysis, there is an efficient amount of procedure (?) GOLDBERG V. KELLY, US 1970 (p. 68) Kelly alleged violations of Due Process (14th amendment) and Social Security Act requirement for ‘fair hearing’ because of welfare dept’s practice of cutting people off welfare benefits without notice or opportunity to appeal. Subsequent to filing of complaint, NY implemented procedures for notice & hearing – plaintiffs challenge these as unconstitutional because they allowed people to appeal only after benefits had been cut. Balancing Approach: seriousness of terminating someone’s aid with the potential gov’t interests in not paying someone who is undeserving and the additional costs of having a hearing. depriving someone of their very means to live was not justified only to save some gov’t costs. However: no need for judicial setting in pre-termination hearing if there is also an opportunity to appeal BODDIE V. CONNECTICUT (US 1971) (p. 68) Plaintiffs are welfare recipients suing in class action because state of Connecticut’s requirements for payment of court fees and costs for service of process restrict their access to courts in effort to bring an action for divorce. Connecticut charges $60 - $95 to file action in court ($45) and then to serve other party ($10 to $50). 4 Holding: Due process does prohibit State from denying, solely because of inability to pay, access to courts to individuals who seek judicial dissolution of their marriages in good faith. MATHEWS V. ELDRIDGE (US 1976) (p.39): In determining whether deprivation of disability benefits requires pre-deprivation hearing, court balances: 1.