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Civil Procedure I
Rutgers University, Newark School of Law
Kim, Suzanne A.

Prof. Kim—Civil Procedure—Spring 2012

1)      Introduction: The Powers and Processes of Courts
A.     Introduction to Civil Procedure
i)        Historical Introduction and An Outline of the Procedure in a Civil Action
(1)   Civil procedure addresses the methods by which substantive law can  be enforced, typically, although not exclusively, by courts; addresses the channeling of disputes into courts and the methods for resolving them there; it concerns the premises and operations of the adversarial system of justice, the scope of due process, the ethical issues posed for a lawyer entrusted with representing the interests of another, and the proper balance between efficiency and fairness
(2)   Parties
(a)   The complaining party becomes the plaintiff (or plaintiffs)
(b)   Those named in terms of fault or responsibility for the plaintiffs’ claims become the defendant (or defendants)
(c)    The Federal Rules of Civil Procedure permit plaintiffs and defendants to construct lawsuits that vary the bipolar two-party lawsuit structure through devices such as joinder, intervention, class action, and interpleader.
(3)   Jurisdiction
(a)   Refers to the power of a tribunal over a case
(b)   Unless congress grants exclusivity to the federal court system, there is concurrent subject matter jurisdiction and the plaintiff has a choice of federal or state court if able to bring suit in both courts
(c)    Two types of jurisdiction
(i)     Subject matter jurisdiction—court must be authorized by the Constitution and statutes to decide cases dealing with this kind of subject
-The Constitution and the Statutes under which the court operates must have conferred upon it the power to decide this type of case
1.      Federal district (trial) courts have power to hear only the kinds of lawsuits specified by Congress under 3 categories
a.      Diversity of citizenship (the parties are citizens of different states or one of them is a citizen of a foreign country) and amount of controversy greater than $75K (must satisfy both criteria) (§ 1332)
b.      Federal statute or constitutional question (Federal question) (§ 1331)
c.       Specialized Courts (ex. Tax Courts) have even more restricted spheres of subject matter jurisdiction
2.      State trial courts include some with general jurisdiction—they are able to decide most cases
3.      Trial courts hear the initial dispute and presentation of evidence; appellate courts review the record developed in the course of the trial in light of claims of error in legal interpretation or application
(ii)   Personal Jurisdiction—the court selected by the plaintiff must have authority to direct the defendant to appear and to bind the defendant with a judgment (defendant must be subject to suit in the state in which the court is located so that a valid judgment can be entered against him)
(iii) Original Jurisdiction
-Court in which cases are brought and tried
(iv) Appellate Jurisdiction
-Court to review the decisions of lower courts
(4)   Underlying civil procedure is: justice, power, social policy, and values
(a)   5 big questions
(i)     How should society resolve disputes?
1.      Ex: summary judgment-should disputes be decided by a professional judge or by lay citizens summoned to serve on juries?
(ii)   Are there certain disputes that the court system should not accommodate?
1.      Ex: does this case fall within the power of this court’s authority to adjudicate the case?
(iii) How should economic disparities affect access to justice?
1.      Forcing settlement through costly litigation
(iv) What power should judges who are mainly not elected have over dispute resolution?
(v)   Can the words of the rules actually limit those with power to enforce them, like judges?
ii)      Thinking Like a Trial Lawyer
(1)   The Stages and Essential Concepts of a Civil Litigation
(a)   Cause of Action (or claim showing that the pleader is entitled to relief) = shorthand for what events or circumstances must have taken place before a court will grant relief under some applicable substantive law
(b)   Question of Cognizability = whether the law will give relief
(c)    Elements = components of a cause of action
(d)   Personal Jurisdiction = which states/courts the defendant can be sued in
(e)    Forum State = a state in which a court sits and where a suit has been or will be brought
(f)     Subject Matter Jurisdiction = what court is empowered to hear this type of case (Federal or State or Specialized?); a combination of constitutional provisions and statutes grant different courts the right to hear different types of causes
(g)   General Subject Matter Jurisdiction = broad grant of power to a trial court that has the authority to hear most types of cases
(h)   Limited Subject Matter Jurisdiction = the subject matter jurisdiction of federal courts (authorized by Article III of the U.S. Constitution)
(i)     The two major grants of limited subject matter jurisdiction to the federal district courts are called federal question (§ 1331) and diversity of citizenship (§1332)
(i)     Venue = where within the state or federal system the case can be brought
(j)     Notice = due process requirement of notifying defendants of the commencement of suit
(k)   Concurrent subject matter jurisdiction = a case that has both federal and state subject matter jurisdiction; Congress, however, can make a grant of exclusive subject matter jurisdiction; if Congress hasn’t, then the plaintiff has their choice of courts
(l)     Long-Arm Statute = statutory grant of jurisdiction to local courts over foreign defendants (example of motorists travelling through state)
(m) Complaint = must be drafted in accordance with the state’s procedural rules (or federal rules)
(n)   Statute of Limitations = must file complaint within a statutorily prescribed time or lose right to bring action
(o)   Service of Process = defendant is formally notified of complaint and served a copy of the complaint and a summons ordering their appearance in court
(p)   Joinder of Parties = whether one can or should join multiple defendants in the same issue
(q)   Joinder of Claims = whether one can or should join multiple causes of action in the same suit
(r)    Answer = when defendant files an answer in response to the complaint, he/she must admit or deny the allegations
(s)    Affirmative Defenses = defenses that the defendant has to the plaintiff’s causes of action, even if the case is in an appropriate court and the plaintiff otherwise has a good cause of action; defendant must state his/her affirmative defenses in the answer, or risk waiving it by not stating; if defendant proves an affirmative defense they will win
(t)     Compulsory Counterclaims = damages or relief that the defendant seeks from the plaintiff that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim that must be asserted to be cognizable or else the claim may not be brought in a later, separate action
(u)   Permissive Counterclaims = a counterclaim that need not be asserted to be cognizable, usually because it does not arise out of the same transaction or occurrence as the opposing party’s claim.  Permissive counterclaims may be brought in a later, separate action.
(v)   Impleader (or third party practice) = a procedure in which a third party is brought into a lawsuit, especially by a defendant who seeks to shift liability to someone not sued by the plaintiff; complaint for indemnification
(w)  Cross Claims = claims that co-defendants may have against each other
(x)   Burden of production = the party with the burden of proof must have a sufficiency of evidence as to each element of at least one cause of action to permit a reasonable fact finder to find that each element is true
(y)   Summary Judgment = a judgment granted on a claim or defense about which there is no genuine issue of material fact and upon which the movant is entitled to judgment as a matter of law
(2)   Claims, Causes of Actions, Elements
(a)   Plaintiffs have 3 obligations in order to win a civil litigation (putting aside jurisdictional and notice issues)
(i)     If they are in federal court, they must state a claim for which they are entitled to relief (in some state courts or for some claims, the procedural rules also require a statement of the facts underlying the cause of action)
(ii)   After satisfying their initial pleading obligation, plaintiffs must meet the burden of production (the plaintiff must present sufficient evidence to permit a reasonable person to find that each element of a claim or cause of action is true)
(iii) A plaintiff must meet the burden of persuasion by persuading the fact finder that each element is more likely than not to be true (Preponderance of the Evidence)
B.     Procedural Rules and Judicial Power
i)        United States v. Hall (1972) Defendant was arrested after willfully violating the order, and the district court found him guilty of criminal contempt. Hall knew but wasn’t served. 
(1)   The court affirmed the conviction because the district court had the inherent power to preserve its ability to render judgment in the desegregation case. The court found that defendant's disruptive conduct jeopardized the judgment already entered and its authority to enter desegregation orders in the future.
(2)   The court found that FRCP 65(d) did not prevent the entry of the ex parte order against an un-definable class of persons because the rule was not a limitation of the court's inherent common-law powers and because defendant's relationship to the underlying case fell within that contemplated under Rule 65(d).
(a)   Underlying action is school desegregation case from 1971
(3)   A (district) court has the power to punish for criminal contempt a person who, though neither a party nor bearing any legal relationship to a party to the original case/litigation, violates a court order designed to protect the court’s judgment in a school desegregation case.
(4)   This holding affirmed the power of a court of equity to issue an order to preserve the status quo in order to protect its ability to render judgment in a case over which it might have jurisdiction.”
(5)   “The principle that courts have jurisdiction to punish for contempt in order to protect their ability to render judgment is also found in the use of in rem injuctions. Federal courts have issued injunctions binding on all persons, regardless of notice, who come into contact with property which is the subject of a judicial decree….A court entering a decree binding on a particular piece of property is necessarily faced with the danger that its judgment may be disrupted in the future by members of an indefinable class – those who may come into contact with the property.  The in rem injunction protects the court’s judgment.”
(6)   Injunction – Court order directed at person’s behavior to get them to do or not to do something
(7)   Ex parte = one sided proceeding; usually done without notice or argument from the adverse party
(a)   Rule 65 says there are limited circumstances when notice can’t be given (when ex parte will apply)
(b)   Ex parte is only for temporary orders.  For a permanent order, the other party must be present
(8)   In rem injunction – has to do with property; it is really broad (broader than FRCP 65(d))
(a)   Proceeding against thing (as opposed to proceeding against the person)
(i)     Ex. Preventing someone to go on piece of property or injunction against moving property from its current location
(9)   Rule 65(d):
(a)   In rem is much broader than Rule 65(d)
(b)   Rule 65(d) is a codification, can’t be read as a limitation
(c)    Rule was not intended to limit (eliminate) in rem injunctions
(d)   POLICY: Relation between procedural rules and power
(i)     Was the district court’s decision lawless?
1.      Judge tries to harmonize federal rules and common law.  Also taking into account the nature of the dispute
a.      Under common law, we think that a non party cannot violate an injunction.  This is Hall’s argument
ii)      Rule 65: Governs the procedure on applications for preliminary injunctions and temporary restraining orders
iii)    28 USC §2071: Governs rule-making power generally
iv)    28 USC §2072: Rules of procedure and evidence and the power to prescribe
v)      28 USC §2073: Rules of procedure and evidence and method of prescribing
vi)    28 USC §2074: Rules of procedure and evidence and submission to Congress and effective date
2)      Due Process, Cost-Benefit Analysis, and Justice
A.     The Values of Process and Elements of a Hearing
i)        Due process refers to the right to be heard or more broadly it could be understood as respect for fair treatment
ii)      What’s important about due process?
(1)   Advance notice (when should this occur?)
(2)   Opportunity to respond and make your case
(3)   Ability to confront/examine adverse witnesses in person
(4)   Ability to have an oral proceeding
(5)   Impartial decision maker
(a)   Should it be an expert judge or a jury of your peers?
(6)   Impartial decision based on what’s presented to decision maker
(7)   Based on facts, arguments and law for consistency
(a)   Pre-existing norms
(8)   Access to legal aid – should economic status stand in the way?
iii)    Joint Anti-Fascist Refugee Committee v.

itional procedural processes (because it would require additional resources)
(11)  Majority: want opportunity to be heard, to cross examine adverse witnesses and counsel.
v)      POLICY: The Supreme Court and Litigation Access Fees
(1)   Essay addresses why it is very difficult for impoverished individuals to file lawsuits
(2)   Four Values That are Furthered by Allowing a Person to Litigate:
(a)   Dignity Values – reflect concern for the humiliation or loss of self-respect which a person might suffer if denied an opportunity to litigate; these are most clearly offended when a person confronts a formal, state sponsored, public proceeding charging wrong-dong, and is either prevented from responding, or forced to respond without assistance and resources that a self-respecting response necessitates
(b)   Participation Values – reflect an appreciation of litigation as one of the modes which persons exert influence, or have their wills “counted” in societal decisions they care about
(c)    Deterrence Values – recognize the instrumentality of litigation as a mechanism for influencing or constraining individual behavior in ways thought socially desirable (constraining individuals to the performance of duties and obligations imposed with a view to the social welfare)
(d)   Effectuation Values – see litigation as an important means through which persons are enabled to get, or are given assurance of having, whatever we regard as rightfully theirs; more generally, an assurance that their interests will be protected through the process of litigation
vi)    POLICY: A Relational Model of Authority in Groups
(1)   Why is procedural justice so central to legitimacy?
(a)   A key factor affecting legitimacy across a variety of settings is the person’s evaluation of the fairness of the procedures used by the authority in question.
(b)   Poorly resolved disputes can threaten enduring relationships
(c)    Appearance of fairness is critical to good decision making and appearance of legitimacy
(d)   Through the design of procedures a group gives itself form and makes specific its values and goals
(i)     Perceptions of procedures have greater impact on evaluations of groups than do perceptions of outcomes
(ii)   Unfair procedure is more threatening than a single unfair outcome
(2)   Considers procedural values in light of social psychology and political stability
(3)   Perception of fairness is very important because:
(a)    It preserves the fabric of society
(b)   Absent objective indicators of the correctness of a decision, the use of fair procedures is the best guarantee of decision quality
(c)    Perception of fairness is a key element in the effective exercise of legitimate authority
B.     The Cost of Process
i)        Matthews v. Eldridge (1976) (Compare with Goldberg v. Kelley) The U.S. Supreme Court found that respondent had not been denied procedural due process when he was not granted an evidentiary hearing prior to termination of his Social Security disability benefit payments. Procedural due process had been satisfied because of perception that the respondent was not in as dire a position as that of a typical welfare recipient (Compare to Goldberg), and because of the countless procedural safeguards of the process, including an evidentiary procedures (from medical personnel) before the denial of the claim became final. The public interest in limiting the procedures available was significant, given the cost of additional procedures.
(1)   Holding: The Due Process Clause of the Fifth Amendment does not require that the recipient is afforded an opportunity for an evidentiary hearing prior to the termination of Social Security disability benefit payments; because other procedures in place were sufficient to satisfy due process, and the state of persons receiving disability benefits was typically not as serious as that of welfare recipients.
(2)   Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances.  Due process is flexible and calls for such procedural protections as the particular situation demands.
(3)   The Matthews Calculus:  Due process three prong analysis (balancing test of competing factors concerning the requirements for sufficient due process)
(a)   The identification of the specific of the specific dictates of due process generally requires consideration of three distinct factors: 
(i)     First, the private interest that will be affected by the official action;
(ii)   Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards (concerned with the risk that the procedures being used will lead to an erroneous result); and
(iii) Third, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail (costs, administrative burdens, public interest, etc.).
(b)   Additional considerations: 1) Degree of potential deprivation that may be created by a particular decision; 2) The possible length of wrongful deprivation of benefits; 3) Fairness and reliability of the existing pre-termination procedures, and the probable value, if any, of additional procedures; and 4) Public Interest.