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

Civil Procedure – Kim Spring 2013

1. INTRODUCTION: The Powers and Processes of Courts

a. Procedural Rules and Judicial Power

i. FRCP Rule 65(d): Contents and Scope of Every Injunction and Restraining Order

1. Rule 65(d)(2) – Persons Bound: The Order binds only the following who receive actual notice of it by personal service or otherwise:

a. The parties;

b. The parties’ officers, agents, servants, employees, and attorneys; and

c. Other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)

2. Rule 65 governs the procedure on applications for preliminary injunctions and temporary restraining orders.

3. Rule 65 says there are limited circumstances when notice can’t be given

a. Ex Parte: one-sided proceeding; usually done without notice or argument from the adverse party.

i. This only works for temporary restraining orders under Rule 65(b)(1)

ii. For a permanent order, the other party must be given notice under Rule 65(a)(1)

b. U.S. v. Hall: D was arrested after willfully violating the order, and the district court found him guilty of criminal contempt. D knew of the injunction but wasn’t served. Claims he was a 3rd party to the injunction and cannot be prosecuted.

i. Court finds that because the injunction was in rem, Rule 65(d) did not prevent the entry of the ex parte order against an indefinable class of persons because the rule was not a limitation of the court’s inherent common-law powers and because the D’s relationship to the underlying case falls within that contemplated in Rule 65(d).

ii. POLICY: Was court’s decision lawless? Judge tried to harmonize federal rules and common-law. Also consider the nature of the dispute (desegregation case).

ii. 28 U.S.C. § 2071 – Rule-making power generally:

1. § 2071(a): SCOTUS and all courts established by congress can prescribe rules of conduct of their business.

2. § 2071(b): any rule proscribed by a court (except SCOTUS) under § 2071(a) will be prescribed only after appropriate public notice and an opportunity for comment is given.

iii. 28 U.S.C. § 2072 – Rules of procedure and evidence; power to prescribe:

1. § 2072(a): SCOTUS will have the power to prescribe general rules of practice and procedure and rules of evidence for cases in US District Courts.

2. § 2072(b): These rules cannot abridge, enlarge or modify any substantive right. Any laws in conflict with these rules will have no further force or effect after the rules come into effect.


a. The Values of Process and Elements of a Hearing

i. Due Process: refers to the right to be heard, or could be understood as respect for fair treatment.

1. One of the constitution’s most basic notions of procedure.

2. What’s important about due process?

a. Advance notice

b. Opportunity to make your case

c. Ability to confront/examine adverse witnesses in person

d. Decision maker-impartial

i. Should it be an expert judge or a jury of your peers?

e. Based on facts, arguments and law for consistency

f. Access to legal aid – economic status should not bar due process

ii. The Right to be Heard

1. POLICY: The idea of due process is an evolving question rather than a static formulation.

2. Notice and opportunity are vehicles for determining the truth – the opportunity to be heard and present one’s own evidence is important to create perception of justice.

a. Joint Anti-Fascist Comm. v. McGrath: three organizations claimed that the government action of listing them as communists was taken without notice or opportunity to present a defense.

i. Court interpreted Due Process as requiring the opportunity to be heard and present one’s own evidence before being labeled pejoratively by the government.

3. FRCP Rule 8 – General Rules of Pleading

a. Rule 8(a): requires that the document contain a short plain statement of the claim showing that the pleader is entitled to relief, along with a demand for that relief.

i. POLICY: Why would attorneys choose to give more than just a short plain statement of the complaint?

1. More full or perfect view

2. Complaint is going to give judges background – if done effectively, might prompt the defendant to settle

3. To orient the media/public

4. To offer a version of the facts that may be adverted to the court

4. 14th Amendment Due Process Clause:

a. No state shall deprive a person of life, liberty, or property without due process of the law.

b. Written submissions are not adequate to meet Due Process Standards.

i. Many individuals lack the education to write effectively; written submissions don’t permit the recipient to mold his argument to the issues the decision maker regard as important and don’t afford the flexibility of oral presentations.

ii. Goldberg v. Kelley: In terminating welfare recipients, the commissioner’s procedures required notice of termination and a review by a local welfare official, and allowed a written statement to demonstrate why benefits should not be terminated, followed by a fair hearing after termination.

1. SCOTUS found that the Due Process clause of the 14th Amendment requires a full individual evidentiary hearing before a recipient of certain government benefits (like welfare) is deprived of such benefits. Such individuals have a property interest in certain government entitlements.

c. Values that are furthered by allowing a person to litigate:

i. Dignity Values: reflect concern for the humiliation or loss of self-respect which a person might suffer if denied an opportunity to litigate

ii. Participation Values: reflect an appreciation of litigation as one of the modes which exert influence, or have their wills “counted” in social decisions they care about

iii. Deterrence Values: recognizes the instrumentality of litigation as a mechanism for influencing or constraining individual behavior in ways thought socially desirable

iv. Effectuation Values: sees litigation as an important means through which persons are enabled to get, or are given assurance of having, whatever we regard as rightfully theirs

d. Why is procedural justice so central to legitimacy?

i. Poorly resolved disputes can threaten enduring relationships.

ii. The best guarantee of decision quality is the use of good and fair procedures.

iii. Unfair procedure is more threatening than a single unfair outcome.

b. The Costs of Process

i. SCOTUS came up with a test to determine whether a person’s Procedural Due Process rights were unfairly deprived in Matthews v. Eldridge

1. Procedural Due Process 3-Prong Analysis (balancing test):

a. Look at the Private Interest of the individual being affected

b. Look at the Risk of Erroneous Deprivation of the interest and value of additional procedures

c. Look at the Government/Public’s I

case is resolved

3. Devices for securing the judgment and for maintaining the status quo stem from the equity powers of the courts

ii. Securing the Judgment: Attachments, Garnishments and Sequestration

1. Securing the judgment refers to tying up the defendant’s property pending outcome.

2. Sequestration attaches property funds pending the outcome of litigation; public official takes property to a neutral location or access to the property is cut off.

a. Plaintiffs are assured that defendants’ resources will be available.

b. Tying up a defendant’s assets puts intense pressure on the defendant to settle, regardless of the merits of the case.

3. FRCP Rule 64: Seizure of Person or Property

a. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.

i. One type of provisional relief because it says “at commencement of and throughout action.”

b. Authorizes procedures such as prejudgment attachment, replevin, and garnishment, which may be awarded when they would be authorized under the law of the state in which the federal court is located.

i. Attachment: order giving sheriff authority to take defendant’s property and bring it into custody of the court for purposes of securing satisfaction of action.

ii. Civil Arrest: Sheriff arrests defendant on plaintiff’s court order. Not used often anymore.

iii. Garnishment: Statutory proceeding in which person’s property, money, credits in possession or under control of another are applied to payments of debt owed to third party.

iv. Replevin: recovering goods or chattels.

v. Sequestration: process by which property or funds are attached through court’s help and are taken out of control of defendant and either given to court, plaintiffs, or neutral party’s control.

iii. Maintaining the Status Quo

1. FRCP Rule 65 – Injunctions and Restraining Orders:

a. A type of order to secure judgment by attempting to restrain a party through a court order.

b. Working with FRCP Rule 65:

1. FRCP Rule 65(b)(1) – Get a Temporary Restraining Order: (expires in 14 days) “court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney if…”

2. FRCP Rule 65(b)(1)(a): requires an affidavit or verified complaint that clearly shows that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

3. FRCP Rule 65(b)(1)(b): The movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required