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

I. The Basics
A. Stages and Essential Concepts of Civil Litigation
a) The underlying concept the lawyer would use in reaching the result of cognizability is called the cause of action or claim showing that the pleader is entitled to relief.
b) Once you decide to file a lawsuit you need to decide in which states the defendant can be sued, this is a question of personal jurisdiction.
c) The question of what court is empowered to hear this type of case is called a question of subject matter jurisdiction. Most statutes grant a state trial court the authority to hear most types of cases, this is most often called a grant of general subject matter jurisdiction
d) The constitution authorizes congress to grant limited subject matter jurisdiction to federal district courts, normally the two major grants are federal question and diversity of citizenship.
e) You then must determine a geographic question, where within a state or the federal system a case can be brought, this is called venue.
f) Not only must the plaintiff have personal jurisdiction over the defendant, subject matter jurisdiction in the appropriate court, but the D’s must be appropriately notified of the commencement of the suit. This is the due process notion of notice.
g) Unless congress makes a grant of exclusive subject matter jurisdiction, then a case that would have federal subject matter jurisdiction, also has state subject matter jurisdiction.
h) You then must check the long arm statute of the state to make sure that a citizen of another state can be sued in the state for a tort that occurred there.
i) You will then draft a complaint, and check the applicable statute of limitations, then make sure each defendant has been served or otherwise notified about the case, then whether or not you want to demand a jury trial.
j) As a P lawyer you must consider joinder issues at the beginning of the case. If you choose to raise both negligence and battery, that would be called joinder of claims, then if you add a party like a doctor, that is joinder of parties.
k) In the response to the complaint, the D can bring a motion to dismiss based on the P’s failure to state a cause of action or as per FRCP 12(b)(6), failure to state a claim upon which relief can be granted.
l) Defendant has many options in the motion or answer to complaint, the D can challenge personal jurisdiction, subject matter jurisdiction, venue, and notice. The D in filing its answer must admit or deny the allegations. Must state or risk waiving by not stating affirmative defenses.
m) D can also counterclaim against the P for damages or relief. In federal court FRCP 13(a) states compulsory counterclaims if the D has a claim that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Perhaps Joe slandered Sally right after the incident.
n) If sally worked for a messenger company that indemnified her for any harm that occurs during delivery, she could bring a complaint for indemnification against the company called an impleader or third part practice. In federal court impleader is covered by FRCP 14.
o) If defendants have claims against each other they are called cross claims FRCP 13(g).
p) If P must join certain parties or the case cannot move forward, these are called issues of necessary and indispensable parties and covered by FRCP 19.
q) Assuming the case survives preliminary motions, the parties engage in discovery, gaining information from other parties. FRCP 26-37 cover the discovery provisions. Written questions to opposing parties called interrogatories, or oral depositions.
r) Burden of production and burden of persuasion – at the trial the party with the burden of proof must have a sufficiency of evidence as to each element of a cause of action to permit a reasonable fact finder to find that each element is true. This is called the burden of production.
s) If the D lawyer does not think there is sufficient evidence to permit a reasonable fact finder to find each element to be true at the conclusion of the P case, he can move for a judgment as a matter of law as per FRCP 50(a). This was once labeled as a motion for directed verdict. The D could still win even if P survives directed verdict motion, because the jury itself may not believe one or all of the assertions of the P.
t) In civil cases the P must persuade the fact finder by a preponderance of the evidence that each element of the claim is more likely than not to be true.
u) If after discovery it seems that there is no way a plaintiff can win his or her case because its predictable that at the trial the plaintiff will not have a sufficiency to meet the burden of production the D can bring a motion for summary judgment, this is FRCP 56.
v) Motions for renewed judgment as a matter of law FRCP 50(b), once labeled judgment notwithstanding the verdict, or judgment nov. Raises the same question as a motion for directed verdict and requires the judge to apply the same test but the motion is brought after the jury has reached its verdict.
w) Appealing judgments made on motions is usually called an interlocutory appeal, and are sometimes allowed if the question involved is one of law, the question is controlling, there are substantial grounds for a difference of opinion and immediate appeal materially advances the ultimate termination of litigation.
x) Claim preclusion – cannot split a claim that arises over the same subject matter. Issue preclusion is when lets say the promissory note is found valid, but D doesn’t pay the acceleration clause payments, in a later case D cannot question the validity of the promissory note, he will be collaterally estopped from denying its validity.
II. Introduction: The Powers and Processes of Courts
A. Procedural Rules and Judicial Power
1. US v. Hall – Can a district court judge punish or indeed do anything to someone who was not a party to the relevant lawsuit?
a) The case arises out of a school desegregation case. The Circuit Court issued an order that mandated the integration of the schools and set out the rights of the plaintiffs (students) and the duties of the defendants (integrate). Violence erupted at the school and the sheriff and administrators petitioned the court (which retained jurisdiction) to issue an ex parte injunction against outsiders and students to disrupt the school. Hall was on notice of the injunction but violated it anyway. Hall relied on common law (2 cases) and FRCP 65 to rebut his conviction for contempt. The two cases were similar in that they applied to people not in the original litigation and thus the order did not apply to them, but they differed in that the third parties could not disrupt the duties and rights of the original parties. Hall’s actions did disrupt the court’s power to enforce the rule. The court reasoned that this order was like an in rem injunction where the court enters a decree binding on a piece of property binding against all persons who could come into contact with the property. These are effective because it protects the court’s judgment against an unidentifiable class. The school decrees depend on the cooperation of the community to insure the benefits inure to the plaintiffs. FRCP 65 was meant to codify this rule not limit its application, and the court had basically adjudicated the rights of the entire community. Furthermore, the ruling was more like a TRO not a preliminary or permanent inj

ther the due process clause of the 5th or 14th amendment requires that prior to the termination of social security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing. The court says no, and distinguishes Kelly on the grounds that unlike welfare recipients, disabled workers are not in as much need, issues of credibility are not present because doctors write memos, issues of having oral argument are not present because much of the evidence is documented by professionals. Due process is meant to be flexible and calls for protections as the situation demands.
b) Three Factor Test:
(1) The private interest that will be affected by the official action.
(a) Less than Goldberg because there are other temporary income streams available.
(b) His interest is having his benefits uninterrupted.
(2) The risk of an erroneous deprivation of such interest through the procedures used and the probable value of additional procedural safeguards.
(a) It is the risk of error in the procedures, the risk that Mr. Eldridge’s benefits will be wrongfully terminated.
(3) The government’s interest, including the function involved and the fiscal and administrative burdens that the additional procedures would entail.
(a) At some point the benefit of an additional safeguard to the individual may be outweighed by the cost.
(b) Costs, administrative burdens, etc.
2. Jerry L. Mashaw, The Supreme Court’s Due Process Calculus
a) The goal of the courts is to give content to the requirements of due process while maintaining an appropriate judicial role in the design of administrative procedures.
b) The article claims the Eldridge factors consist of a utilitarian balancing proposition and ignore the full range of concerns embodied in the due process clause. The author claims that the utilitarian approach attempts to quantify the unquantifiable.
c) Utilitarianism – is to maximize social welfare. The rule boiled down is that void procedures for lack of due process only when alternative procedures would so substantially increase social welfare that their rejection seems irrational. The focus of the court is on the accuracy of the procedures and not whether due process was afforded.
d) Individual Dignity – To accord an individual less (than a hearing) when his property or status is at stake requires justification not just because he might contribute to accurate determinations but also a lack of personal participation causes alienation.
e) Equality – might have been fruitful to inquire whether the decision-making based on documents particularly disadvantages a certain class, like some medical ailments which are subjective. Also there is evidence that decisions are made by higher authorities based on records that are so inadequate lower authorities could not make a determination.
f) The focus should be on safeguarding individual liberty and protecting the social welfare in general. How can you put a price or cost on a right?