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Civil Procedure I
CUNY School of Law
Goldscheid, Julie

Professor Julie Goldscheid
Civil Procedure
Spring 2015
-Three views / Theories of Procedure:
1) Procedure is justice so procedural rules should not bend in the face of temporary situational concerns.
2) Procedure is the servant of justice, so procedural rules should not stand in the way of just results in particular circumstance.
3) The distinction between procedure and substance is an illusion and cannot be maintained. Procedural values can generate the same compelling arguments as values in other area of law.
-What are Procedural Questions for a Civil Complaint?
-Date of Incident?
-Parties names?
-Jurisdiction/Venue? (Federal or State, or different boroughs like where a suit could be filed, or type of court)
-Remedies being sought? (Money, Injunction or change in the law)
-Possible class action?
-Timeliness? (SOL)
-Who are the Defendants?
-Ask for Depositions (Defendants)?
1/23 – An Introduction to Procedure:  The Right to be Heard and Due Process
•    Explicitly stated in the McGrath case, the values of due process is reflected through the rules.
o   Justice Frankfurter, “ No better instrument has been devised for arriving at truth than to give a person in jeopardy if serious loss notice of the case against him and an opportunity to meet it. Nor has a better way has been found for generating the feeling, so important to popular government, that justice has been done.” (page 25)
o  Goldberg Standard-
!    Whether recipient’s interest in avoiding “grievous loss” outweighs with explicit
consideration of cost.
!      Government interest in summary adjudication, however at the same time they want to give both parties the ability to be heard.
!    Values of procedural due process
•    Opportunity to be heard
•    Judged Fairly/ Impartial judge
•    Tell your story/ Same rules apply to everyone
•    Tailored to the needs of an individuals perception of fairness.
Goals of Due Process: REMEDIES:
Remedies: change in procedure (like Stop & Frisk), Money, getting someone to perform (restraining order, child support), get employer to pay unpaid wages. OR Punitive Damages.
-Injunction: Ordering someone to do OR not to do something.
-Preliminary Injunction: in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going ahead with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided.
-Permanent Injunction: like preliminary but w/enduring effect.
-Consent Decree: Settlements negotiated by parties but approved and enforced by the court (like ICO?)
-Declaratory Judgment: The court will issue a clarification issue. (like someone may not want to do business w/ another person unless he gets a clear announcement that this person will breach no patents).
•    Provisional/temporary  relief= relief before the end of litigation
o  Securing the Judgment- Attorneys tieing up defendants property pending the
outcome of litigation. The process of this taking place is calling sequestration. Also a
tactic for defendant to settle.
!    Seizure of property- lien on property
•      Rule 64 (A) seizure can begin in the pursuit of an action and throughout the action every remedy is available under the state in which the action is being made. If there is a federal statute that applies then the federal statute will supersede and govern. Would mostly govern procedural issues. (B)
•      Injunctive relief- To stop the defendant from engaging in harmful act or refrain from doing act and conform to the legal standards.
o   Plaintiff seeking preliminary injunction must establish that he is likely to succeed on the merits and the absence of preliminary injunction the plaintiff would suffer irreparable harm. Courts will look at substance of the law. (Ligon)
o  Examples of Injunctive relief are
!      Temporary Restraining orders- the defendant does not have to be present for the TRO to be issued.
•    Final Relief- At the conclusion of trial if plaintiff prevails, the court may issue an award for
money damages or equitable relief such as permanent injunctions.
o  Equitable (injunctive, declaratory, consent decree)
!    Equitable Injunctive relief- Brown v. Board to stop segregation.
!    Key issue is whether there is an adequate remedy at law.
o   Declaratory- have to have live dispute. Often in insurance cases and employment discrimination.
o  Legal (nominal,compensatory,  punitive)
•    Damages
o  Nominal- Usually one dollar
o  Compensatory- to restore the party to where they were before the harm took place.
“Make the party whole”
!    Ex. Medical bills
!    Loss of wages
!    Out of pocket expenses
!      ****Compensatory  damages- In order for the court to award compensatory damages, the plaintiffs need to prove actual harm.
!      Punitive- Serve as a deterrent to stop bad behavior.  If an act is egregious, or callous and wanton against people.
Approaches to Billing:
– hourly billing 
– contingency 
– annual salary by law firms- private and government firms / in house counsel/non-profit orgs
– some cases where you file fee for safety applications
– Retainers fee : negotiated fee for when you are on call when needed
– Flat rate fee for a particular type f transaction [will, type of divorce/ real easte] 
– govt. funding 
Financing Litigation
FRCP 54(d)- Unless there is a federal statute, costs, other  than attorney’s fees should be allowed to the prevailing party.
Rule 54: Deposition fees and other costs related to litigation- who pa

. Heightened Pleadings:
-FRCP 8(a) – pleading must contain…”a short and plain statement of the claim showing that the pleader is entitled to relief…”
-FRCP 9(b) – in pleadings alleging fraud or mistake, the circumstances “shall be stated with particularity.”
*The rules are making a difference between fraud or mistake…mental state of mind can be alleged generally (like malice). BUT Fraud has a higher standard. – to make it harder to prove harm.
FRCP 8(a)(2)- Complaint must be a short and plain statement of the claim showing that the impleader is entitled to relief.
FRCP 9(b) – In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of persons mind may be alleged generally.
•    Claim Ex. Wrongful Death
•    Cause of Action:
o   Are the elements that need to be fulfilled in order for the impleader to file a successful compliant.
!    Ex. Negligence Elements are
•    Duty, breach, Actual Cause, Proximate cause and Harm
Rule: for each cause of action in a complaint there will be elements and for each element, the complaint has to contain actual factual allegation that if they are proven at trial, then P would have stated a claim.
Iqbal/Twombly standard 2 step process:
1.Identify Non-Conclusory Allegations
•      Not assuming the truth of the conclusion statement. The facts in complaint have to be taken as true and that the plaintiff has to prove them in court.
2. Whether the facts are plausible to state a claim.
•    conclusory statements are not taken in consideration.
·         Write on test: Do the Non- conclusory allegations plausibly state a claim which the plaintiff may be entitled to recovery?
Non Conclusory vs. Conclusory 
– have to show evidence/ facts for a statement not just a conclusion [i.e. he discriminated against me- NEED to prove it first baby girl] -The courts apply a flexible plausibility standard^^
A claim has facial plausibility when the P pleads factual content that allows the court to draw a reasonable inference that D is reliable for the conduct at hand.
-Conclusory: treat people of diff races different; the driver was negligent; driving recklessly
-Non conclusory: driving without headlights; texting while driving