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Civil Procedure I
Rutgers University, Newark School of Law
Noll, David

Civil Procedure Outline Spring 2014 Professor Noll

I. Due Process Foundations
a.  Supreme Ct.’s notion of due process:
i. Notice
ii. Hearing
iii. Reasonable time to prepare
iv. Neutral arbiter (i.e. judge)

b. What should be the process before a prejudgment remedy is given? How much process?
i. Fuentes v. Shevin (P. defaults on a stove—FL law)
1. Ct. holds that prejudgment replevin statutes, which deprive individuals of their property must comply with procedural due process
2. 3-part test for when a state can deprive a person of a prop. Interest w/o a mini trial:
a. Important state interest
b. Special need for prompt action (Exigency)
c. Person instituting seizure must be gov’t official (State has to act on its own volition)
3. Situations where state can take property w/o DP:
a. War effortàto requisition materials
b. Seizure of misbranded food & drugs
c. Economic disasters or bank failures
d. Search warrants
e. Tax garnishments  
4. Process:
a. No specific allegations
b. A bond IS required
c. No appearance before a judge
d. No post deprivation remedies
ii. Mitchel v. W.T. Grant Co.  (P. defaults on household goods on installment Ks—LA law)
1. Prejudgment seizure is proper when a judge reviews the complaint that has specific facts alleging possession, a bond is posted and a hearing is afforded.
2. Process:
a. Must have specific allegations
b. Must have bond
c. Appearance before judge
d. Post deprivation remedied (i.e. post-seizure hearing)
3. Here, the statute was constitutional because it provided judicial review, an immediate hearing, specific facts, and plaintiff must pay for attorney’s fees, fines or damages if writ was improper.
iii. North Georgia Finishing, Inc. v. Di-Chem Inc. (K disputeàwrit of garnishment—GA law)
1. Pre-judgment garnishments are unconstitutional if they do not afford the person an immediate hearing to dispute the claims, a judge, a bond, or post-judgment remedies
2. Process:
a. No specific allegations
b. No bond
c. No judge
d. No post deprivation remedies
iv. In sum:
1. Per LA (Fuentes), if a statute has all of the protections, it’s c constitutional
2. Per FL, if the statute provides some protections, it’s constitutional (White’s dissent)
3. Per GA, a statute is unconstitutional if it rails all of the protection conditions.  
**Due Process Review Before Doehr:
1. Fuentes:
i. Foundational approach
ii. 5 elements checklist
iii. White dissent alternative practical approach,
2. Mitchell:
i. Establishes facts that are enough for Justice White
v. Connecticut v. Doehr (P. sought an attachment in connection with a civil action for assault and battery)
i. Consider private interest
-Individual’s life, liberty or property
ii. Risk of erroneous deprivation and value of additional process?
iii. Principal attention to the interests of the party seeking the prejudgment attachment OR Government Interest (if dealing with a gov’t program)
vi. Van Harken v. City of Chicago (new parking ticket system)
1. Posner analysis of costs and benefits:
a. Private interest is low
b. State interest is medium-low
c. Risk of error is medium
d. Hence, no violation of due process

II. Pleading
Three Parts of Pleading:
1. Complaint
2. Answers
3. Reply
I. Rule 8(a) and (b) and Rule 12(b)
1)     Rule 8(a):  Claims for Relief
a)     Short and plain statement of grounds upon which court’s jurisdiction depends, unless court already has jurisdiction.
b)     “A short and plain statement of the claim showing that the pleader is entitled to relief.”
c)      Relief that the pleader seeks.
2)     Rule 8(b):  Defenses:  Form of Denials
a)     Short and plain statement of defenses to each claim asserted
b)     Admit or deny averments upon

ssed under FRCP 12(b)(6). P in this case appealed before the dismissal became final, thereby destroying any right to file an amended complaint by electing to stand on the original deficient complaint.
(1)  The court will not supply P with the alternative legal theory. He must supply it himself.
(2)  The sufficiency of a complaint rests on the sufficiency of some legal theory: P’s duty to supply a legal theory—Dismissal under Rule 12(b)(6) was appropriate here.
(3)  Pleading specifically: If attorney is working on contingent fee basis; he will know sooner rather than later whether legal theory will be tossed (Attorney was testing his claim)
(4)  Pleading generally: Force the other side to do more research and delay the case.
(5)  Rule 12(H)—some motions will be waived if you don’t use immediately
D. Certification by Signing—Rule 11
1. Zuk v. Eastern PA: Sanctions may be imposed upon an attorney pursuant to 28 U.S.C.A. §1927 where the attorney multiplies the proceedings unreasonably and vexatiously in willful bad faith. When imposing sanctions under Rule 11, the Court must take into account both P’s and his attorney’s investigations into both fact and law, and should consider a wide range of possible sanctions to offer minimum punishment.
(1) Rule 11 sanctions are proper when counsel fails to make an      adequate inquiry into bot the facts and the law, which is reasonable under the circumstances.
(2) Counsel must also specifically identify  allegations without evidentiary support.
(3) How is this enforced?:
i. File a motion for sanctions—(c)(2)
ii. Motion is served to the side being threatened w/ sanctions; must describe specific conduct at issue.
iii. Safe Harbor—the “threatened” party has 21 days to withdraw the offending document (paper, claim, etc.)
iv. The ct. decides the sanctions motion only if the threatened party doesn’t withdraw the offending document
v. Self-regulating system (to a point)
(4) Note: Rule 9(b) requires heightened pleading standard for some types of claims