1) Introduction to Litigation and Remedies
a) Compensatory Damages: measured and proven damages—damages that will compensate the plaintiff for money he has either lost or has had to pay (ex: breach of K)
b) Liquidated Damages: amount of damages agreed to be paid IF a party breaches a K—amount is written into the K (will only be enforced if the actual damages are difficult to calculate)
c) Statutory Damages: minimum amount of damages set by statute; not specifically tied to the amount of the loss suffered
d) Punitive Damages: Damages awarded to punish the defendant
i) Due Process Limits
(1) Procedural due process:
(a) Appellate review must be available
(b) Review must be de novo
(2) Substantive due process (3 part test):
(a) Degree of reprehensibility of conduct
(b) Disparity between actual or potential harm and punitive award
(i) Should be a single-digit ratio (State Farm v. Cambell)
(c) Difference between punitive damages in this case and in other comparable cases
e) Specific Remedies
i) Replevin (give my shit back)
ii) Mandamus (make that government official do their damn job)
iii) Habeas Corpus
iv) Quiet Title (you don’t own that property, bitch)
v) Injunction: an order to do something/not do something—Preliminary injunction to prevent a wrong from happening
(1) Four Factor Test for Issuing a Preliminary Injunction:
(a) The plaintiff will suffer irreparable injury if injunctive relief is not granted,
(b) The plaintiff will probably prevail on the merits,
(c) In balancing the equities, the defendant will not be harmed, more than the plaintiff is helped by the injunction,
(d) Granting the injunction is in the public interest.
(2) Alternate Test: a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor.
2) Financing Litigation
a) The Rules:
i) Rule 54: Judgments; Costs
(1) Rule 54(d)(1): allows costs and fees to be paid by the losing party (except against the federal government)
ii) Rule 68: Offer of Judgment
(1) Efficiency Rule: Encourages Defendants to make reasonable (and early) offer and Plaintiffs to accept. Must be written and served. Only makes sense in a fee-shifting scheme where attorney fees are included. If it’s just costs, then that’s a pretty small amount and not important.
iii) 28 U.S.C. § 1920: Taxation of Costs
(1) Says what costs are (docket fees, copies, witnesses, etc.)
b) Fee Spreading
i) Liability Insurance: policy holders share the costs; those who don’t have accidents are subsidizing those who do.
ii) Contingent Fee: other clients of the lawyer from winning cases subsidize the costs of the losing cases
iii) Other Litigation Subsidies
(1) Society
(a) Indigent criminal defendants and public prosecutors
(b) Public funding to legal aid
(2) The private bar
(a) Pro bono services
(3) Public Interest organizations
(a) Private funding to legal aid
(b) Membership organizations litigating for a cause
c) Fee Shifting—arises in a few ways
i) The Common Fund: if a plaintiff’s efforts create a benefit for many people, then the attorney’s fees are shared by all that benefited. (class actions)
ii) By Contract: contract can provide that if litigation over contract arises, the loser will pay the winner’s legal fees.
iii) By Common Law: e.g. when a plaintiff has groundlessly brought suit.
iv) By Statute: authorization of the courts to award fees to parties “in any action which has resulted in the enforcement of an important right affecting the public interest” (Civil rights; litigation against government—Equal Access to Justice Act)
d) settlement by consent decree can grant plaintiff’s relief and waive prevailing party’s fees or costs—thus getting around the Fees Act. Evans v. Jeff D.
i) Fee Act does not prohibit settlements conditioned on the waiver of fees. This could make settlements less attractive.
e) “Prevailing Party” does NOT include a party that has achieved its desired result because the lawsuit brought about a defendant’s voluntary change in conduct. Plaintiff did not secure a judgment on the merits or a court-ordered consent decree. Buckhannon Board and Care Home v. WVDept. Of Health and Human Resources
i) No such thing as a “catalyst theory” because it lacks necessary “judicial imprimatur” or material alteration of the legal relationship of the parties. (Judicial imprimatur requires a judgment or consent decree—what is needed for a party to be a “prevailing party” and get fees)
3) Pleadings
a) Introduction to FRCP
i) Rule 3- “ A civil action is commenced by filing a complaint with the court”
ii) Rule 7(a)- Everything that can be considered a pleading
(1) Complaint ( must contain an allegation)
(2) Answer to Complaint
(3) Answer to counterclaim/ counterclaim
(4) Answer to cross claim
(5) Third party complaint
(6) Answer to third party complaint
(7) If the court orders an reply to an answer
b) The Complaint
i) Rule 8 Requirements to State a Claim
(1) A statement setting forth the court’s jurisdiction over the case.
(2) A statement of claim specifically stating that the plaintiff is entitled to some sort of relief.
(3) A demand for judgment in the plaintiff’s favor, for whatever relief the plaintiff seeks (e.g., monetary damages, injunction, etc.).
ii) Ashcroft v. Iqbal- “plausibility” pleading
(1)
)(1) Lack of subject-matter jurisdiction
12(b)(2) Lack of personal jurisdiction (must be raised on first motion/answer or
12(b)(3) Improper venue they are waived)
12(b)(4)(Insufficiency of process
12(b)(5)Insufficiency of service of process
12(b)(6)Failure to state a claim upon which relief may be granted
12(b)(7) Failure to join a necessary party
iii) Other parts of Answer
(1) Have to admit or deny ever allegation
(a) if you don’t respond to an allegation, you admit them
(2) any 12(b) defenses
(3) Rule 12(h) determines if you have to include something to prevent it from being waived
(4) Anything from 12(b) 1, 6,&7 can be added latter without it being deemed waived
(a) These aren’t ever waiveable because this is about the court’s interest in the syste
(b) Because there is an “OR”, it is the first thing that is filed first that matters
(5) any affirmative defenses (8c)
(a) You can waive this if you don’t bring it up without long process
(6) additional facts/ counterclaim
(a) If you have one but fail to put it in your answer
(i) If compulsory you likely have to raise it or risk losing it
(ii) If permissive, don’t have to include it because you can sue for that claim at any point at time
** Based on the 1 amendment rule you have a small window to fix a mistake**
e) Motions to Dismiss
i) Types of 12(b)(6) Challenge
(1) Haddle v. Garrison – we have read all your facts but there is no law that gives you remedy
(2) FRCP 12(b)- reasons to get the whole case thrown out
(a) (b)(4)- insufficient process- something on the paper is wrong
(b) (b)(5) Insufficient service of process- service wasn’t correct
(c) (b)(6)- failure to state a claim upon which relief can be granted- ex Iqbal, Twombly
(i) Three Categories
(ii) I’ve read your story and there is no known cause of action for the story you told (“so what” defense)
(iii) There is a cause of action, but you haven’t told us enough facts about your story ( Iqbal- only conclusory allegations )
ii) There is a cause of action and you’re told us enough, but from what you told us it is clear you are going to love on an element
