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

Civil Procedure – Class 1 – 1/13/14


I. Introduction

1. 1. Three Parts to Class

a. Due Process

b. Life Cycle of a Civil Case

i. Pleadings

ii. Discovery

iii. Summary Judgment

iv. Trial

v. Appeal

c. Allocation of Authority

i. Personal Jurisdiction

ii. Subject Matter Jurisdiction

iii. Erie Doctrine (Diversity)

2. 2. Contract Hypo

a. Man who breeds cattle, Stark, enters into an agreement with a woman named Lannister, to sell a cow for $100, on May 1st, 2014. The market price for cattle increase and by May 1st the market price for cattle is $120. Instead of selling the cattle to Lannister, Stark sells the cattle to Targaryen for $120. Lannister demands the cattle from Stark for $100 or $20 in damages to buy the cattle for $120.

i. If there were no courts, state or police what would happen between Stark and Lannister?

1. The stronger person will take the cow or $20

2. The willingness of people to enter into agreements becomes less likely, because there is uncertainty in the agreement.

3. For people to organize their lives, which improves the overall welfare of society, we need some sort of mechanism for enforcing rights.

ii. If there is a primitive state, police and courts?

1. Mr. Lannister can say, even though she may be less be physically powerful than Stark, he can go to the courthouse, put in her claim for the cow, the court can determine who owns the cow. A judgment for the cow can be given to the sheriff, and get the cow.

3. 3. Paradigm of Common Law Dispute (Triadic Model)

a. Lannister v. Stark an example of the paradigm common law dispute. Lots of cases in 1L curriculum look like this:

b. Plaintiff

c. Defendant

d. Neutral (Court)

e. The dispute is bi-polar

f. Between two parties (ex. Stark v. Lannister)

g. Retrospective

h. Right and remedy interdependent (damages or the cow, the remedy flows from the substantive rights; no need for court to exercise judgment in determining remedy)

i. Self-Contained (provide parties with dispute resolution system)

j. Party Drive System (people motivating judicial action are the parties; parties are going to court when they have a right they want enforced)

4. 4. Common Law Model

a. But is this accurate? Does the world really work this way?

b. Does a car salesman care about the outcome of Stark v. Lannister?

i. What if a judge determined that remedy breach for K is death penalty?

1. Yes, the principals of law flowing from this decision can spread out beyond the individual dispute

ii. Suppose that Stark is going out of business, does not want to pay an expensive lawyer, and gets an idiot lawyer. What’s a car seller’s interest in this situation?

1. Since Stark has a less than competent lawyer representing him, a decision here can become precedent against the car seller in other breach of K decisions.

2. The car salesman will try to get involved somehow

a. Motion to intervene

b. Call Stark up on the phone

3. The lawsuits seep out beyond the individual dispute and effect parties that have an interest in the case

II. Due Process Foundations

1. Prejudgment Remedy

a. What should be the process before a prejudgment remedy is given? How much process?

b. Fuentes v. Shevin, 407 U.S. 67 (1972) p31

i. Fuentes buys a stove from a company that sells stoves on an installment plan, Firestone. Fuentes defaults and Firestone wants possession of the stove.

ii. Firestone files a lawsuit, Firestone v. Fuentes, in Florida small-claims court

iii. Under Florida statute, Firestone was allowed to seize the stove under a writ of replevin

1. Replevin is a legal remedy for a person to recover goods unlawfully withheld from their possession.

iv. To obtain the writ, Firestone only had to fill in the blanks of the appropriate form.

v. How does Fuentes find out about the lawsuit?

1. When the Sheriff knocks on the door and takes the stove.

2. She does not have any notice about the writ of replevin.

3. This is perfectly legal under Florida statute.

vi. What can Ms. Fuentes do?

1. She concedes she hasn’t been making payments

2. She argues the stove is malfunctioning

3. By statute, she can get the stove back by posting double the value.

vii. Most people, who buy the stoves on installment plans, are people who can’t afford to buy the whole stove, let along post double the price of the stove.

1. Fuentes sues Shevin, the attorney general of Florida, in Federal Court, on a constitutional claim regarding a Due Process claim, based on lack of notice.

viii. What is the Supreme Court’s notion of due process?

1. The state has to provide

a. Notice

b. Hearing

c. Reasonable amount of time to prepare your hearing

d. Neutral arbiter to decide the case (ex. Judge)

e. A right to be represented by counsel and make arguments on her behalf

ix. The Florida statute fails on all elements.

2. Due Process, contd.

a. Hypo conclusion: The processes of a legal system is a better way of enforcing legal rights than the natural order of things (“state of nature”)

b. Laws are norms that govern how society operatesà everyone is better off if they can turn to the system to resolve legal disputes

c. Point: Are we actually better off? Can’t powerful people or corps. hire the best lawyers and always prevail?

i. While that may be somewhat true, there are always cases where “the little guy” can still prevail

3. Some questions that come up w/regard to states & govt.:

a. What are the norms the state is going to enforce?

b. Why do we have elections?

c. Are there some things the state can’t do?

4. à Main question as applicable to Civ. Pro: “Have we substituted 1 monster (courts, etc.) for another (“state of nature”)?

a. This is where due process comes into play: “No state shall deprive anyone of life, liberty, property w/o due process of law”.

b. Due process isn’t self defining—how do we figure out what due process requires?

5. Fuentes vs. Shevin

a. Facts: ∏’s stove is repo’ed by sheriff after a writ of Replevin has been issued.

b. Firestone wants to get the property back ASAP & before trial b/c there’s a risk that it won’t ever get it backà asset is depreciating over time and ∏ could try to destroy it, etc.

c. SCOTUS says that before a state takes your property several things must happen:

i. Must be notice

ii. There must be a hearing

iii. Time to prepare for the hearing

iv. Neutral arbiter

v. Right to have a lawyer and counsel

d. Similar to a trial, but 2 differences: no requirement of jury & there’s no discovery or full trial, etc. (i.e. only abbreviated procedures)

e. Issue: Once we have an understanding of due process, did the Fla. statue satisfy DP?

f. –By Fla. statute, person can only get prop back if they post a “double bond”, otherwise they have to wait until the trial is over.

g. Other situations when state can take property w/o due process:

i. War effortà to requisition materials

ii. Seizure of misbranded food & drugs

iii. Economic disasters or bank failures

iv. Search warrants

v. Tax garnishment

h. Why are these situations okay? Is there any principle that organizes all of these exceptions?

i. There are situations where govt. can seize a person’s property w/o following DP guidelinesà When seizure is necessary to preserve govt. interest and important for society at large (important public interest).

j. Also idea that in the above 5 situations, govt. is behaving on its own behalf, not a private citizen’s

i. à Court is afraid that a person w/o a legal right to the property ends up getting the property; when govt. acts on its own behalf there’s less of a risk that a person will initiate the process for a

rongful deprivation, we have another problem: there’s no limiting principle the court’s analysis. If what we’re worried about is wrongful deprivation, the state should provide as much process as possible – counsel, appeal, trial on the merits.

f. Natural explanation for why the Court is asking for a basic hearing is cost. Providing more process isn’t worth the cost. But in nn. 22 and 29, the Court says that cost is irrelevant to DP. What matters is the process.

g. Justice White has an answer.

i. Firestone will not take stoves that are fully paid for because bad for business and its reputation

ii. Fuentes may receive bond for wrongful deprivation

h. Justice White also says that consumers may be hurt by hearing requirement:

i. if Firestone must go to court to protect its interests, than Firestone will bake those costs into the costs of stoves and transfer the litigation costs to consumers

i. So White challenging the majority on several grounds:

i. On meaning of DP, emphasizing risk of error, business realities, rather than formalities

ii. Also challenges majority’s economics

1. Presents a very simple model to show that the risk of error here isn’t unreasonable. It’s true that we’re not having full trial on the merits. However, there are processes in place to protect against wrongful deprivations.

2. Court, Fuentes say that more process is needed to protect “have nots” buying stoves on the installment plan.

3. White says, “no no.” Process required by the Supreme Court will actually end up hurting those it is intended to benefit.

9. Mitchell v. W.T. Grant Co.

a. Mitchell (defendant) buys from W.T. Grant (corporate plaintiff) several household goods on installment contracts. Grant then sues Mitchell, alleging breach of contract.

b. All we know is that there is an allegation – there is no dispute that goods were sold on an installment contract, but we have no findings at this point as to the merit of the default/debt claim

c. This case would be Grant v. Mitchell in LA state court

d. Grant acquires a writ of sequestration by:

i. Affidavit with specific facts

ii. Specific documentation (company’s ledger and books)

iii. Bond (2x value of goods in question)

iv. Judge hears request for writ

v. There are also Post-Judgment Remedies

vi. Damages and attorney fees if the writ is later determined to be improper and without merit, and Mitchell prevails in the subsequent proceedings

vii. Generally speaking, each party is responsible for his or her own attorney fees – that is why this provision here for attorney’s fees is significant to the SCOTUS

1. American Rule – all parties pay for their own costs of litigation

2. What is average cost of an attorney? $100/hr up to $1800 for Ted Olson (Bush v Gore atty)

3. provision for fee shifting is a recognition that the free market may not supply as many lawyers in this installment-contract-litigation market at is socially optimal. Defendants here are likely poor (customers on installment plans) and unable to pay for lawyers. This provision of lawyer’s fees will incentivize more lawyers to operate in this undersupplied market.