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Civil Procedure I
Rutgers University, Newark School of Law
Leubsdorf, John




I. Civil Procedure Generally

a. Sources of civil procedure

i. Rules/statutes

· Congress empowered judges to write the rules.

· Rules may only deal with “practice and procedure”

a. “such rules shall not abridge, enlarge, or modify any substantive right.”

ii. Case law is used to fine tune rules/explain them.

b. Hawkins v Masters Farms Inc

i. Court found plaintiff who had moved to another state had established a sufficient connection to become a citizen of the new state and therefore could sue someone from his original state in federal court.

c. Stages in a civil lawsuit

i. Determining where to sue:

· Plaintiff first determines where to bring the action.

a. Look at Subject matter jurisdiction, personal jurisdiction, venue

Pleading the case

b. Complaint – document where plaintiff sets out her claims.

c. Def responds w/ an answer or pre-answer motion.

ii. Joinder

iii. Discovery

iv. Resolution before trial

· Dismissal

· Summary judgment

v. Trial

vi. Post-Trial

II. Financing Litigation

a. American Rule

i. Each party pays its own attorney. (encourages strong but low damage cases. Discourages high-cost “law reform” suits)

b. English Rule

i. Loser pays at least part of the victor’s fees. (encourages “law reform” suits. Discourages meritorious low-damage suits)

c. Methods of paying

i. Hourly Fee-

· Most common financing mechanism

ii. Flat Rates

· Set amount for particular type of work

iii. Insurance (Fee Spreading)

· Ex: liability insurance policy requires the insurance company to pay not only for liability but also for the costs of defense.

· Most standard liability policies that promise to provide the insured’s legal defense also give the insurer the power to settle a claim within policy limits without the insured’s consent.

· Spreads fee over other insurance holders (pay for each other)

iv. The Contingent Fee (Fee Spreading)

· Some limitations:

a. Percentage of recovery – usually in the range of 20%-50%

i. Sliding scale – lower percentage if settled before trial, higher during etc.

ii. Fees have to be higher to accommodate losing cases- thus contingent fees cause the successful clients to bear part of the costs attributable to the unsuccessful clients. (Spreading)

b. Ex: NJ makes lawyers explain to their clients the alternative of hourly fee representation.

v. Pro Bono – Public subsidies and professional charity (Spread cost among all citizens)

· Legal aid, volunteer lawyers for justice, etc.

vi. Fee Shifting

· The Common fund

a. If one brings a law suit and others will benefit they should pay according to the court. (how they finance class actions)

· By Contract

a. Contracts today require the breaching party to pay attorneys’ fees of other party.

· By Common Law

a. Well established that loser must pay others fees when plaintiff has groundlessly brought a suit.

· By Statute

a. When legislature creates a cause of action – often provides for payment of the winners attorney’s fee.

i. Recovery usually limited to REASONABLE FEE

b. Buckhannon Board and Care Home Inc. v. WV dept. of health and human resources

i. Fee shifting statute awarding fees to prevailing party applies only when a party obtains a court judgment in its favor.

ii. Plaintiff who settles may not use statute to recover fees form defendant

1. Can avoid paying attorneys fees by changing your behavior à thus no court order granted and issue becomes moot

c. FRCP 68 à if plaintiff rejects a formal settlement offer and at trial ultimately recovers less than amount offered, plaintiff must pay any costs incurred by defendant after the offer.

i. Usually those costs DO NOT include attorneys fees BUT

ii. Marek V Chesney

1. When plaintiff sues under statute that shifts fees costs DO INCLUDE attorneys fees

d. FRCP 54 à unless stated otherwise, costs (other than attorneys fees) should be allowed to the prevailing party.

i. §1920 à Taxation of Costs

1. A judge or clerk of any court of US may tax as costs the following:

vii. Provisional Remedies

· FRCP 65 (a-c) à

a. Preliminary injunctions, temp. restraining order, security.

b. William Inglis & Sons Baking Co. v ITT Continental baking Co.

i. To be entitled to preliminary injunction the court must find:

1. Plaintiff will suffer irreparable injury if injunctive relief not granted

2. Plaintiff will probably prevail on merits

3. Balance equities and defendant will not be harmed more than plaintiff is helped by injunction

4. Granting injunction is in public interest

· Relief pending final adjudication of the dispute

a. Preliminary injunction, temporary restraining orders

b. One moving for a preliminary injunction assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tip sharply in his favor.

III. Personal Jurisdiction

a. In what states can the plaintiff sue the defendant

b. To give personal Jurisdiction – Court must have power over something:

i. Defendant Herself

ii. Defendant Property

c. 3 kinds of personal jurisdiction

i. in personam

· Court has power over the defendant herself.

· Either:

a. General – defendant can be sued in the forum on claim that arose anywhere in the world.

b. Specific – being sued for claim that arises in the forum –

i. Related to your activity in the forum

· Constitutional Limit

a. Pennoyer v Neff (1877)

i. land dispute – Neff originally owns land, loses judgment to Mitchell. Court sells Neff’s land to Pennoyer. Neff sues pennoyer and the court says the earlier suit taking Neff’s land was without PJ and therefore invalid.

ii. Traditional basis for personal jurisdiction

1. Defendant is served with process in the forum (Presence) (gives us general jurisdiction)

2. Defendant’s Agent served in the forum (General)

3. Defendant is domiciled in the forum (General)

4. Consent

iii. Very hard to get personal jurisdiction under Pennoyer

b. Hess v Polaski (not in book)

i. PA driver hits MASS driver – wants to sue but driver back in PA

ii. Non-resident motorist act – ever

ared interest of the several states in furthering fundamental substantive social policies.

g. Burger King Corp v Rudzewicz (1985)

i. Contract case in FL – sues 2 Michigan guys in Miami (franchisees)

ii. Court says there is jurisdiction in Miami over MI guys

1. Court makes clear – 2 parts to international shoe

a. Contact

b. Fairness

2. Must have relevant contact before fairness becomes a relevant factor at all.

a. Michigan guys reached out to Florida to get franchise

b. Just having contact with resident of forum state is not sufficient by itself

i. If contract was negotiated or performed in forum that is evidence of purposeful availment.

ii. Here they knew they were negotiating with Florida corporation.

c. Court said it was VERY difficult to argue that jurisdiction is NOT FAIR

i. Must show forum is so gravely inconvenient, that she is at severe disadvantage in the litigation (almost impossible to show) (court says relative wealth of parties is irrelevant)

h. Asahi Metal Industry Co. v Superior Court (1987)

i. Stream of commerce case

1. PL sues Taiwanese defendant who in turn impleaded Japanese 3rd party defendant.

2. This case was largely decided on lack of fairness.

ii. Brennan Theory on Contacts necessary

1. There is Contact if I put the product into the stream and reasonably anticipate that it will get to a state X

iii. O’Connor Theory on contacts necessary

1. You need more than the Brennan Theory

2. Need what Brennan Said, PLUS an intent to serve state X

a. Advertise, consumer service there, etc.

b. Without additional intent – its unilateral act of 3rd party

i. Pavlovich v Superior Court (2002)

i. Kid has website with links to other info on how to decrypt DVD’s

1. court determined that because the website was passive, there were not sufficient purposeful contacts to give PJ

2. “no evidence that site targeted California, no evidence that any CA resident ever visited”

ii. PL argued that he should have known movie industry was in CA and therefore was purposefully availing himself to CA by trying to hurt movie industry.

1. Court says à knowledge alone is insufficient to establish express aiming at the forum state as required

iii. Notes

1. Passive site – just one that can be viewed

a. Jurisdiction doesn’t usually exist (ex: here)

2. Active site – viewer may input info and enter transaction

a. Establish contacts with buyers state

3. Interactive site – can input info, but no transaction

a. Look at all circumstances/level of activity