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Civil Procedure I
Rutgers University, Newark School of Law
Eisinger, Erica

Civil Procedure Spring 2013 Outline – Eisinger

Civil – everything that isn’t criminal – look to outcomes, remedies, results.

i. Damages or injunction, can’t lose liberty (jail/prison)

Procedure – not substance (the what)

i. Substance = rules in the real world (ex: speed limit)

ii. Procedure = “the how” (applies only within the court, how to run it) ex: color of brief to appeal a decision

iii. The law (Const, statutes, rules of Fed Civ Pro, cases), principles (policy), and practices (law in action; ex: extension of 20 day reply rule) that govern behavior of courts (actors = judge, jury), lawyers, and parties (P, D, witnesses, experts) in dealing with non-criminal disputes that turn into lawsuits

I. Introduction

a. Subject matter jurisdiction – power to hear a matter. All courts have subjects that they can and cannot hear

b. Personal jurisdiction – power to make D come to your state/court. Must be some connection between D and place of trial – focuses on D

c. Federal courts – limited jurisdiction (state courts usually general jurisdiction)

i. USC 28 § 1331 Federal Question – ex: civil rights, patent law, ADA. Breaking fed law

ii. USC 28 § 1332 Diversity jurisdiction – all parties citizens of different states and matter in controversy exceeds $75,000

d. Hawkins v Masters Farms Inc – P’s file in fed court alleging diversity juris under § 1332

i. Rule 8a – P must list how SMJ – claims diversity, citizens of diff states

ii. Test for citizens of diversity = domicile

1. Where P resides at time of accident AND

2. Intent to remain

iii. Diversity juris – protection against home court advantage. Want Fed cts to not do all the work, keep Fed cts juris small/not tied up

e. Bridges v Diesel Service – P fired, alleges ADA violation but doesn’t exhaust other req remedies first. D motion s for Rule 11 sanctions

i. Court didn’t sanction P, but told them should have known. Deterrence (Rule 11), discretion on $ sanctions

f. Event flowchart:

i. Pre-filing investigation (Rule 11) – where to file suit? (SMJ), what (claims 12b6) facts and law. When? SOL. Who? Rule 20 joinder

1. P complaint – Rule 3, 8(a)(1) (what to say in complaint, 1= juris, 2= state claim with enough precision to get beyond motion to dismiss, 3= what relief)

2. Rule 20 joinder (who do you sue?)

a. Service – Rule 4 (personal or mailed)

3. D can now:

a. Do nothing à default judgment Rule 55, would have to appeal

b. Motion to dismiss:

i. Rule 12(b)(1) – lack of SMJ

ii. 12(b)(4-5): service, process

iii. 12(b)(6) – failure to state a claim

1. Granted – with prejudice (no permission to amend) – appeal is only alternative. Without prejudice – amend Rule 15

2. Denied – answer under Rule 8

3. Rule 12E motion for definite statement

4. Discovery Rule 33 interrogatories

5. Rule 11 sanctions: send to P 21 days

a. B1 – pleading filed just to harass, delay, improper purpose

b. B2 – didn’t do proper investigation

c. B3 – no basis in fact or likelihood of finding evidence

d. B4 – denials of fact were warranted based on evidence

e. P cures (fixes problem) – amended complaint Rule 15(a)

i. Refuses to cure (File for Rule 11)

6. Answer – point by point taking on P’s allegations and answering each

g. Bell v Novick Transfer – P sues, D driving negligently. D moves to dismiss under 12b6 – failure to state a claim

i. 12E – motion for more information – denied – not so vague that no response could be given

ii. Rule 8 – short plain statement – just need to put D on notice of the legal theory

1. Don’t need the specific facts yet, P may not have all of them yet. Use discovery to figure out the rest.

h. Fact vs notice pleading

i. Fact pleading – weed out claims

ii. Notice pleading – more claims resolved on the facts justly

i. Larson v American Family Mutual Ins – P hires lawyer, actually did nothing and was working on being hired by D ins co for other matters. P fire him.

i. Diversity – but P chose state court, his choice

ii. P eventually moves to amend complaint to add bad lawyer

iii. Rule 15a – if 21 days can just amend. Court granted anyway, since P’s acted as soon as possible after discovery (good faith)

1. (a)(2) – “justice so requires”

iv. Rule 20 – joinder – to join party or claim – must arise out of same transaction or occurrence

v. Here, Ins co didn’t pay b/c conspiracy with lawyer. Efficient to try in same suit: same discovery and evidence

j. Discovery – no trial by ambush. Compel other side to answer you

i. Rule 33 – interrogatories – written answers by lawyer of client’s answers

ii. Rule 34 – produce documents and records

iii. Rule 36 – admissions

iv. Rule 30 – depositions

v. Rule 45 – subpoena of non party

vi. Limits:

1. 26B – irrelevant

2. 26B – privilege

3. 26C – undue burden

vii. Rule 37 – motion to compel discovery – Magistrate judge hears it

viii. Rule 26C – motion for protective order to protect from discovery

k. Butler v Rigsby – Dr’s treating all P’s, D’s think faking records

i. Rule 45 – subpoena

ii. Dr’s file 26C protective order – irrelevant and privilege (D’s wanted records of everyone, not just in this case)

l. Summary judgment – decide cases to avoid trial when nothing to try

i. Opposing party: can say factual dispute or failure of proof for party bearing burden

m. Houchens v American Home Assurance Co – Mr H disappeared, considered dead 7 yrs later under VA law. Ins policies only for accidental work death and home death. Denied claim.

i. Ins co motion for summary judgment Rule 56 – P’s wife has burden of proof of evidence of Mr H’s death being accidental, can’t prove it.

n. Norton v Snapper Power Equipment 1987 – P injured when riding mower slides down hill and brakes fail. Sues mfr, D moves for directed verdict, trial ct dismisses. COA reinstates, causation is enough by expert.

i. JMOL not to be granted (as trial ct did) when sufficient evidence for which reasonable trier of fact could find for nonmoving party (P)

o. Former Adjudication – shouldn’t be able to try a case again if not satisfied with result

i. Claim preclusion – P sues for car accident injuries and loses, can’t sue again. If P wins, D can appeal, but can’t bring 2nd action to set aside 1st.

ii. Issue preclusion – A sues B on K, B defends on fraud. A wins, ct says no fraud. A then sues B on another K made at same time, B again claims fraud. A’s claim not precluded (law sees 2nd K as distinct claim), but under issue preclusion, B precluded from claiming fraud 2nd time.

iii. Rush v City of Maple Heights – P won 1st suit against D for dmg to motorcycle, claim preclusion from P bringing 2nd claim for personal injury from accident. Could have brought up personal injuries in 1st claim, didn’t.

p. Appeals – doesn’t retry case but correct errors of law. Not appealable: facts, strategies, interlocutory (non-final) decisions.

i. Apex Hosiery v Leader – D tried to appeal an order to produce documents during discovery, denied – interlocutory.

II. Litigation Process – Remedies

a. Remedies are what a person can recover after a succes

ip – competitive edge for co vs Harris’ loss of job and income. Party seeking injunction more harmed if no injunction

1. Harris’ harm diminished by showing other former employees finding jobs. Balance of harm to Sigma w/o injunction greatly outweighs threat of harm to Harris if injunction granted.

iv. Public harm – restrictive covenants disfavored for public policy (let him work in diff dept)

b. Holding: Harris can work elsewhere, knew terms of agreement when signed.

4. Winter v Natural Resources Defense Council – navy sonor tech; P’s claim harm to marine mammals, violating enviro Fed laws. D say exception for national defense.

a. Party seeking injunction must show – judge decides

i. Possibility of irreparable harm, “near certainty”: trial judge: harm to marine mammals not just possible but near certainty; SC: possible irreparable harm insufficient

ii. Probability/likelihood of success on merits of claim: enviro groups show Navy’s sonar scheme would likely violate enviro laws

iii. Balance of harm: trial judge: Navy stopped sonar in past w/o adverse effect

iv. Public interest: SC majority: trial ct abused discretion by failing to address harm to public on question of national security; deference to military; this factor alone precludes injunction

b. Ginsburg dissent: flexible standard (possibility of irreparable harm balanced by higher likelihood of success on merits still good law; lower courts: balance combo of “serious questions” on merits and irreparable harm against balance of hardships)

v. Due Process – 14th amendment guarantees citizens right to life, liberty, and property – ensured by mandating right to be heard

1. Fuentes v Shevin – F bought stove and Firestone had title until fully paid off. Dispute over service K and Firestone took action to repossess stove and stereo; writ of replevin filed to have sheriff take the goods.

a. F has procedural due process claim

i. Didn’t get notice

ii. Wasn’t heard

b. SC: right to pre-deprivation hearing; dignity

c. Special circumstances for taking w/o pre-hearing: public interest, destruction of evidence.

III. Pleading – Rule 8(a) deals with elements of a complaint (notice pleading)

a. Short and plain statement of ground for court’s jurisdiction; claim showing pleader entitled to relief (a)(2); demand for relief sought

b. Purpose of pleadings:

i. To give notice to opposing side of claim or defense

ii. Reveal some of the dispute’s facts of case

iii. Suggest what issues for trial might be

iv. Help to expose sham claims early in lawsuit to not waste court’s time

c. Haddle v Garrison – at will employee, employer going to be sued and H believed was fired in retaliation for cooperating with investigation. Employer claimed can fire H at any time so reason didn’t matter.

i. Lower ct dismissed with short opinion for failure st state a claim. 11th circuit affirmed.