Select Page

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


I. INTRODUCTION: The Powers and Processes of Courts

1. Introduction to Civil Procedure Basics


Civil Procedure

Civil- non criminal
Procedure- concentration on the methods by which the substantive law can be enforced

Parties- Who’s in the case

Plaintiff: Complaining party
Defendant: Those named in terms of fault or responsibility of the plaintiffs’ claims

Jurisdiction- The power of a tribunal over a case

Jurisdiction over the Subject Matter: A court must be authorized by the Constitution and statutes to decide cases dealing with this kind of subject
Jurisdiction over the Person: The court selected by the Plaintiff must have authority to direct the Defendant to appear in that court and to bind the Defendant with a judgment

Remedies- What the parties are looking for in a suit

Money damages to compensate the P
Money damages to punish D
Declaration of rights and duties of the parties
Injunctions- Orders that direct D to stop harmful conduct or to start new conduct as required by law

General Terms

Cognizability: Whether the law will give relief to a given claim
Cause of Action: The underlying concept the lawyer would use in reaching this result
Ex-parte orders: are temporary restraining orders
Forum State: State in which a court sits and where a suit has been or will be brought
General Subject Matter Jurisdiction: Broad grant of power to a trial court given by either the state constitution or statutes to hear most types of cases
Injunctive relief: order to do or not do something
Limited Subject Matter Jurisdiction: What cases Congress is permitted to authorize the federal district courts to hear-generally more narrow than state constitutions/statutes-2 major grants of power

Federal Question: §1331 grants permission to hear cases “arising from the constitution, laws or treaties” and must be a constitutional issue or based on statute that grants a private claim of action
Diversity of Citizenship: §1332 requires each D to be different from each P in a suit

Venue: Where within the state or federal system the case can be brought
Notice: Appropriate notification from the commencement of the suit. Notice includes detail of the order and punishment if violated.
Long-Arm Statute: A statute providing jurisdiction over a nonresident D who has had contacts w/the territory where the statute is in effect
Complaint: The initial pleading that starts a civil action and states the basis for the court’s jurisdiction, the basis for P’s claim, and the demand for relief
Statute of Limitations: Complaint must be filed w/in the statutorily prescribed time or that each D is served the complaint (service of process) or otherwise notified about the case
Joinder of Claims: Raising multiple claims against D in the same suit
Joinder of Parties: Whether one can or should join multiple Ds
Affirmative Defenses: Part of an answer to a complaint in which D takes the offense and responds to the allegations with D’s charges
Counterclaim: Claim against the opposing party (D’s suing P, who is already suing D)

Compulsory Counterclaim: Counterclaim that arises from the same transaction or occurrence as P’s claim and must be asserted to be cognizable, usually because it relates to the opposing party’s claim and arises out of the same subject matter
Permissive Counterclaim: Counterclaim that does not arise from the same transaction or occurrence as P’s original claim, which doesn’t have to be asserted

Impleader/Third-Party Practice: Procedure by which a third-party is brought into a lawsuit, especially by D who seeks to shift liability to someone not sued by the original P
Cross-Claims: When there are multiple Ps or Ds, it’s a claim, arising out of the same transaction or occurrence as the underlying case, against a co-party (not opposing party)
Necessary and Indispensible Parties: Instances where P must join certain parties in the suit because they are necessary for case to go forward
Discovery: Process of obtaining information before trial, so there are no surprises at trial

Interrogatories: Set of written questions to a party to a lawsuit asked by opposing party as part of the pre-trial discovery
Depositions: Taking and recording of testimony of witnesses under oath

Burden of Production: A party’s obligation to come forward with sufficient evidence to support a particular proposition of fact; issue of law (not fact)

Prima Facie Case: Satisfying the burden of production

Burden of Persuasion: Obligation of a party to introduce evidence that persuades the factfinder to a requisite degree of belief, that a particular proposition of fact is true; burden is usually “by preponderance of evidence”
Judgment as a Matter of Law/Directed Verdict: Judge takes the case away from the jury and decides the case because judge thinks a reasonable person could not disagree on the result
Renewed Judgment as a Matter of Law: After a jury returns a verdict and judgment is entered, the judge can take the judgment away from the prevailing party and enter it for the loser because based on the facts, the jury reached a conclusion that reasonable people could not have reached
Summary Judgment: If one party shows that there is no “genuine dispute/issue of material fact” in the suit, and they are “entitled to judgment as a matter of law” the judge will enter a judgment and there won’t be a trial
Case Management: Where judges or other court personnel exercise control over the time sequence of the case and the among and order of pretrial discovery
Objection: A formal statement opposing something that has occurred, or is about to occur, in court and seeking the judge’s immediate ruling on that point
Judgment: A court’s final determination of the rights and obligations of the parties in a case
Res Judicata: An issue that has been definitively settled by judicial decision (and cannot be brought again)

Thinking like a Trial Lawyer

Personal jurisdiction

In which state can D be sued?

Subject matter jurisdiction

What court is empowered to hear this type of case?
2 limited grants

Federal question
Diversity of citizenship and greater than $75K


Determine where within the state or federal system the case can be brought

Due Process

D must be notified of the commencement of suit

Long-arm statute

Check if D can actually be sued for her actions in that jurisdiction

Joinders of claims
Joinders of parties

Motion to Dismiss
Defendant’s options


File or deny allegations/affirmative defenses


D seeks damages from P

Impleader/third-party practice

Complaint for indemnification


Co-D may sue each other


Parties gaining information from each other

Burden of Production
Burden of Persuasion
Summary Judgment

Case gets disposed after discovery and before trial


Understanding civil procedure is: justice, power, social policy, and value

5 big questions:

How should society resolve disputes?

By professional judge or citizens (jury)

Are there certain disputes that the court system shouldn’t accommodate?

The court’s power & jurisdiction

How should economic disparities affect access to justice?

Questions about access to courts based on their economic abilities

What powers should judges, who are mainly not elected, have over dispute resolution?

What is the proper scope of judicial power?

Can the words of the rules actually limit those w/ power to enforce them, like judges?

2. Procedural Rules and Judicial Power

An Opening Case: The Power and Limits of Courts

US v. Hall

Whether a court has the power to hold a nonparty in contempt

Rule of Law:

A court has the power to convict a nonparty of criminal contempt for violating a restraining order issued to protect the court’s judgment in an underlying case.


Federal Dist Crt ordered an ex parte restraining order prohibiting unauthorized persons from entering certain school grounds who were attempting to desegregate. D was a black power leader, not a party to a lawsuit, but was held in contempt for violating the injunction. D was never served with, but had knowledge of, the injunction

D, Eric Hall, appealed his conviction for contempt for violating an ex parte court order that prohibited Defendant from going near a school. (court had jurisdiction b/c Eric Hall’s actions could impede the fulfillment of the court’s order in Mims v Duval County School Board to desegregate school)


Does a federal dist crt have power to punish for contempt a person who violates the court’s order even though the person punished was not a party to the litigation out of which the order arose?


Yes, D is bound by the ex parte order so long as D has actual notice

Common Law- Tradition of recognizing the power of the court
Rule 65(d)- Did not limit common law power, it just codified the Courts powers

The actions of 3rd parties coming onto the campus really interfered w/the court’s ability to adjudicate the rights of P (school children and their parents) and the obligations of the school district to create a desegregated school
D’s actions were harmful to P

Court uses their authority over “in rem” injunctions to support its ability to render injunctions (“in rem” injunctions bind every)
Also, b/c it was a temporary restraining order, and was not permanent, it could be done ex parte
Courts need to have the power to render a binding judgment, which includes binding any parties that may affect property within that jurisdiction


FRCP 65: Injunctions and Restraining Orders

(a) Preliminary Injunctions

1) Notice: The court may issue a preliminary injunction only on notice to the adverse party
2) Consolidating the Hearing w/the Trail on the Merits:

28 USC § 2071- Rule Making Power Generally

a) SCOTUS and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business, consistent with §2072

28 USC § 2072- Rules of Procedure and Evidence; Power to Prescribe

a) SCOTUS shall have the power to prescribe general rules of practice and procedure for cases in US district courts and CoA
b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect
c) Such rules ma

ess at the state agency level do not tend to treat like cases alike

Tradition or Evolution: Courts try to fit current cases into frameworks that have been decidedly previously, follow precedent. Limits of this instrumental rationality is that can be viewed as a thoughtless adherence to tradition

Kaplow Essay-Focuses on Hearings Furthering Accuracy

If there are procedural protections, decisions will be more accurate, resulting in less mistaken acquittals and more people who are eligible will receive coverage

Value of Participation: Participation/meaningful opportunity to be heard increase legitimacy of the system

Hamdi v. Rumsfeld

SCOTUS’ struggle to apply procedural protections, when executive branch does not want these protections to apply


Plaintiff Government classified Defendant Hamdi (born in America but who lived most of his life in Saudi Arabia) as an “enemy combatant” and determined to hold him indefinitely without formal charges or proceedings and no way to contest label. Defendant challenged this designation, which came from affidavits, as unconstitutional

Holding: Applies Burden Shifting Framework

A US citizen designated and detained as an enemy combatant has a due process right to challenge the underlying factual support for the designation before a neutral arbiter…Person designated as an enemy combatant must get notice and have an opportunity to rebut designation and right to access counsel in connection w/proceedings

Private Interest: Liberty/being free from detention
Gov’t Interest: To protect US from enemy combatants

Military officers shouldn’t be unnecessarily and dangerously distracted by litigation when they’re overseas

Circumstances may require tailoring the procedures “to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict”

Applies Burden Shifting Framework

Applied to reduce the potentially erroneous deprivation b/c once gov’t puts evidence that petitioner meets the enemy combatant criteria, there is a shift to the petitioner to rebut the evidence w/more persuasive evidence that falls outside of the criteria

Gov’t is being granted the presumption (he is an enemy combatant) and tips the scale in their direction and then Hamdi has to put forth more evidence that’s more persuasive that he falls outside that criteria (shifts the burden to gov’t…not innocent until proven guilty)

Hearsay is okay, b/c it may be the most reliable evidence and could be really hard to get 1st person accounts of information

A presumption is granted in favor of the gov’t as long as it’s rebuttable


3. Access to Lawyers and the Legal System

Boddie v. CT


P is a welfare recipient seeking a divorce, bring an “as applied” challenge to certain state procedures for the commencement of litigation, including requirement of payment of court fees and cost of service of process, which restrict their access to the courts

No dispute about their (all those in the suit) inability to pay court or service of process fees
Participants were unsuccessful in their attempt to bring their divorce actions in court simply b/c of their poverty (denied for lack of payment and efforts to obtain a waiver of fee were to no avail)


“Due Process does prohibit a state from denying, solely b/c of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages”

P’s assertion of due process rights for access to courts is similar to D’s rights when “faced with exclusion form the only forum effectively empowered to settle their disputes”
“The State’s refusal to admit these appellants to its courts, the sole means in CT for obtaining a divorce, must be regarded as the equivalent of denying them the opportunity to be heard upon their claimed right to dissolution of their marriages, and, in the absence of a sufficient countervailing justification for the State’s action, a denial of due process”- CT has a monopoly over divorce b/c there are no other alternatives (different from bankruptcy where there are other alternatives, like trying to settle w/bank themselves)