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Civil Procedure I
Rutgers University, Newark School of Law
Paradise, Brandon L.



What is “civil procedure”? – Focuses on methods by which substantive law can be enforced

A. What to Know From the Start

Procedural Law:

· Determines how disputes are channeled into a legal form

· Define the balance of power between the fed gov’t and states

o what power to resolve disputes is retained by each (subject matter jurisdiction)

o which sources of law (fed or state) apply to a dispute when litigated

· Defines the scope of gov’t power


1. Subject Matter Jurisdiction:

o Court must be authorized by the Constitution and statutes to decide cases

o Fed Dictrict (trial) courts can only hear 2 categories:

i. Federal Question – under fed statutes or US Constitution

ii. Diversity of Citizenship and more than statutory minimum

2. Jurisdiction Over the Person

o Court selected by P must have authority to direct D to appear and bind D with judgment


· Monetary

o Compensate P

o Punish D

· Injunctive

o Declaration of rights and duties of the parties

o Orders directing D to stop/start conduct

Procedural Due Process

· Ask: Has there been a deprivation of life, liberty, or property?

o Deprivation of Liberty: Loss of significant freedom provided by the Constitution or Statute

§ Positive Law

o Deprivation of Property: If person has entitlement and it is not fulfilled

§ Entitlement: Reasonable expectation of continued use of benefit.

B. The Power and Limits of Courts

Fed Rules are written by the advisory committee to the Committee on the Rules of Practice and Procedure, approved by the Supreme Court and ratified by Congress

· Judges interpret rules written by judicial branch, rather than legislative

· Fed Rules accompanied by notes written by advisory committee

FRCP 65 – Injunctions and Restraining Orders

USC 2071 – Rule-Making Power Generally

USC 2072 – Rules of Procedure and Evidence: Power to Prescribe

USC 2073 – Rules of Procedure and Evidence; Method of Prescribing

USC 2074 – Rules of Procedure and Evidence; Submission to Congress; Effective Date

United States v. Hall (FRCP 65)

· Facts: District Court ordered integration of a black and white school. District Court issued an ex parte (one party proceedings, no notice) order to prevent outsiders from causing trouble in the schools. D was named in the ordered but never named in prior proceedings. D was convicted for going near the school.

· D challenged the conviction because he was never a party to the suits and per FRCP 65(d) the order was not binding on him

· Held: Conviction upheld. Courts need to have the power to render a binding judgment, and that includes binding on any parties that may affect property within that jurisdiction.

· Rule: A court has the inherent power to issue an interim ex parte order against an identifiable group of people to protect the court’s ability to render a judgment. Court not limited by literal language of FRCP 65(d).

C. Elements of Due Process

Joint Anti-Fascist Refugee Comm. v. McGrath

· Facts: 3 organizations challenged the decision of the attorney general of the US both to list them as “totalitarian, fascist, communist or subversive” and to give the info to the Loyalty Review Board.

· Held: Due Process requires opportunity to be heard and present their own evidence before being labeled pejoratively/negatively.

· Reasons for Notice and Hearing (Frankfurter’s concurrence)

o Interest in arriving at truth

o Perception of justices

Goldberg v. Kelley

· Facts: City officials administering financial aid under federally assisted program were terminating such aid without prior notice and hearing, denying them due process of law. After, City adopted procedures for notice and hearing, with P challenged as constitutionally inadequate. Procedure allowed recipient to challenge proposed termination of benefits within 7 days and submit a written statement for review.

· 14th Amendment

· Held: Where welfare is concerned, only a pre-termination evidentiary hearing provides the recipient with procedural due process. Pre-termination hearing required.

· Pre-termination hearings are required because termination constitutes a deprivation. Seriousness of injury is so acute that it is unnecessary to balance efficiency and cost. Need system to validate grounds for discontinuing aid (reduce false positives). At a minimum, must give adequate and timely notice and provide opportunity to defend oneself.

· Rule: The extent to which procedural due process must be afforded is influenced by the extent to which he may be “condemned to suffer grievous laws”. Due process required a pre-termination hearing prior to termination of welfare benefits.

· Welfare benefits – Require notice & hearing before termination.

Elements Deemed Crucial for Due Process

· Notice

· Opportunity to present evidence

o Majority: Must be tailored to capacity and circumstances of those who want to be heard.

o People who tend to be on welfare don’t have educational background to craft persuasive written response (capacity)

Matthews v. Eldridge – What procedures are required?

· 5th Amendment Issue (deals w fed gov’t)

· Facts: P’s social security benefits are terminated without an evidentiary hearing. P completed a questionarre indicating that his condition hadn’t improved and identified medical sources. After considering these reports, the state made a tentative determination that P’s disability had ceased. Letter included a statement of reasons for termination and advised P that he could submit additional info. Notice of termination was given as well as opportunity to seek reconsideration within 6 months.

· Held: The termination procedure was exhaustive and therefore sufficient. Unlike welfare (need-based), SSD is eligibility based.

· SSD benefits only require post-termination hearing

3 Factor Test (Eldridge Factors)

1. Private Interest Affected

o Court’s view: there are safety net programs available to fill gaps; SS is not based on financi

basis of inability to pay.

· Analogy made to forcing D into court.

· LIMITED application: marriage = fundamental right (so it won’t apply to things like K disputes)

· Dissent: Doesn’t think there is a liberty or property interest at stake here.

· Note case:

o United States v. Kras – Rejecting an indigent person’s request to waive the filing fee on DP grounds.

Established 2 Due Process Principles

1. Requires, at a minimum, that absent a state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard

2. A statute or rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond question.

Lassiter v. Department of Social Services of Durham County, North Carolina (Access to a Lawyer)

· Facts: Lassiter lost custody of infant son. A year later, she is convicted of 2nd degree murder of her other child. Dept of SS petitioned to end Lassiter’s parental rights to the infant. Lassiter had counsel to overturn her murder conviction, but did not notify him of the hearing – she attended alone. Court terminated her parental rights. Lassiter appealed arguing that as an indigent, the state should have provided her assistance of counsel under the DP Clause.

· Court applies presumption that right to counsel originated from criminal proceedings (“deprivation of liberty” = touchstone for deciding right to counsel).

· Held: After weighing Eldridge Factors case-by-case, this case there was reason to believe that Lassiter would have received little help from counsel and that there was no damage done in her lack of counsel.

· Eldridge Factors:

o Parental Interest = Great

o State’s Interest = In line with parental interest (best interests of child)

o Risk of Error = Low, bc there aren’t troubling aspects of law and this P showed little interest in rekindling relationship with her son.

· Rule: DP Clause of the Constitution entitled a party to the assistance of counsel when there is a danger to their personal freedom, or when the private and gov’t interests and the risk of erroneous decisions would mandate the assistance of counsel.

· Due Process is based on idea of right to be heard BUT varies on a case-by-case basis.

· Court is primarily interested in protecting against error.