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


I. Introduction to Civil Procedure

Procedural Rules and Judicial Power

United States v. Hall (5th Cir. 1972) answers the question as to the sources of judicial procedural power. Duval County began desegregated its schools in accordance with Brown v. Board of Education (1954), and later affirmed by a specific action in Mims v. Duval County School Board (5th Cir. 1971). Hall, a non-affiliate of Duval County schools, is challenging the District Court of Florida’s granting of the School Board’s injunctive relief.

The Fifth Circuit ruled the Mims case, which was brought by an African-American student to effectuate the Supreme Court’s ruling in Brown. The Fifth Circuit maintained jurisdiction over this case to effectuate its judgment.
The school board sought injunctive relief from Florida District Court, whereby they asked the court to stop some activity. The relief, granted ex parte (“for a party”), required non-educational personnel and non-students to not enter the school grounds.
Hall was a member of the Black Front and was helping to spark violence in the desegregated schools. Hall entered the school grounds, knowingly in violation of the court order, and was arrested.

The injunctive relief stipulated that it applied to those who had notice of the order. Hall was not personally served but was presumed to have actual notice because the Black Front was served, and because he knew about the order.

Hall makes two arguments: (1) that he was not a party to the Mims litigation, and was acting independently of the injunctive order, and (2) that the injunctive order does not extend to him under Fed. R. Civ. P. 65(d). The court rejects both contentions.

The court distinguishes Hall’s cited cases. See Alemite Manufacturing Corp. v. Staff (2d Cir. 1930) (holding that injunctive relief for patent infringement between two parties does not apply to a third-party infringer); Chase National Bank v. City of Norwalk (1934) (injunctive relief forbidding removal of plaintiff’s equipment cannot broadly apply to those who have notice of the order).
In both Alemite and Chase National, the injunctive relief did not apply to the third parties because it did not disturb “the adjudication of rights and obligations” between the original parties. Here, however, Hall is disturbing Duval’s effort to desegregate and Mims’s opportunity to get an education.

The court has presumed jurisdiction here because Hall is challenging the court’s authority to enforce its own injunctions. It has to protect the legitimacy of the Court’s decision in Brown.
The court further points to in rem proceedings, where injunctions are allowed to bind the world from doing something on the thing being sued.

In response to Hall’s second argument, the court answers that the Federal Rules of Civil Procedure were not meant to restrict the court, but rather to guide the court. Common law works in tandem with the Federal Rules, which explains why in rem injunctions are allowed.

Hall answers the question as to how the Federal Rules and the common law play together. Both work harmoniously together to both guide and restrain the courts. Indeed, in Hall the court restrained its holding by noting that Hall had actual notice of the injunction.
Fed. R. Civ. P. 65: Injunctions and Restraining Orders

65(a): Preliminary injunctions can only be issued when the adverse party has notice of the order.
65(b): Temporary restraining orders may be made by the court without notice to the adverse party only if irreparable harm can be shown and the movant gives reasons why the notice is not required.
65(d)(1): Every injunction and restraining order must state the reasons for its issue, state its terms specifically, and describe “in reasonable detail” the act(s) to be restrained.
65(d)(2): The order is binding only upon the parties; the parties’ officers, agents, servants, employees, and attorneys; and other persons in “active concert or participation” with the above parties.

More binding authority comes from 28 U.S.C. §§ 2071-2074.

28 U.S.C. § 2071: All federal courts have the ability to establish their own rules.
28 U.S.C. § 2072: The Supreme Court has the power to establish general rules for practice, proceedings and evidence for the federal courts, so long as they do not violate substantive rights.
28 U.S.C. § 2073: The Judicial Conference shall prescribe and publish the procedural rules for consideration by the federal courts.
28 U.S.C. § 2074: Congress must approve any rule modifying an evidentiary privilege.

Due Process and Justice

Clause One of the Fourteenth Amendment provides: “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”

At its core, the Due Process Clause protects the right to be heard, but the interpretation of the clause has morphed over time.
Consider Joint Anti-Fascist Refugee Committee v. McGrath (1951), which produced six different opinions. Three organizations were labelled as subversive by the Attorney General without notice or a trial. The majority ruled that such violated the Due Process Clause.

Of particular note was Justice Frankfurter’s concurrence, which noted that “generating the feeling” that “justice has been done” is important to the legitimacy of a popular government. Likewise, Frankfurter noted that “a democratic government must . . . practice fairness.”

Courts have been hesitant to give a formulaic conception to due process. Thus, due process questions are highly contextual and fact-specific.

In Goldberg v. Kelly (1970), Kelly, a welfare recipient, was terminated from the welfare program when he refused to follow his caseworker’s instructions. Kelly did not have a pre-termination hearing, and was refused post-termination interviews. Kelly brought suit against the welfare agency, alleging due process violations.

Writing for the majority, Justice BRENNAN notes that the dispositive issue here was the severity of the deprivation suffered without a pre-termination hearing. Kelly, in particular, was unable to work and very poor.
BRENNAN also states that “minimum procedural safeguards” are sufficient for a pre-termination hearing, namely oral arguments without comprehensive records.
In this case, BRENNAN states that written submissions to the welfare recipients for termination are insufficient, noting that most welfare recipients are uneducated. Oral arguments provide a better forum to determine whether beneficiaries should be terminated.
BRENNAN also notes the concerns with cost and efficiency for the welfare departments. These concerns address why the majority only calls for minimum safeguards and prefers oral arguments—both are cheaper alternatives than formal record-keeping and judicial processes.
Justice BLACK, writing in dissent, notes that the majority’s decision will force the welfare department to be more selective in choosing welfare recipients and will perversely force more welfare recipients off the payrolls.

Goldberg provides the third source of judicial power: due process. Notice how Goldberg also shows the highly contextual nature of due process, especially with written notice being insufficient. Goldberg also shows the interplay of cost concerns on procedure.
Academics offer additional support for the benefits of legitimizing due process.

Frank Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One’s Rights (1973): Protecting due process helps to protect and foster certain values, chief among them: preservation of dignity and self-respect, benefits arising from participation in the legal system, overall deterrence, and respect for the effectuation of the judgment.
Tom Tyler & E. Allan Lund, A Relational Model of Authority in Groups (1992): “[T]he results . . . suggest that the use of fair procedures is an important element, perhaps the key element, for the effective exercise of legitimate authority.”

II. Building Blocks of a Lawsuit

Preparing a Complaint

Fed. R. Civ. P. 1: Scope and Purpose

The Federal Rules apply to all civil cases, except those enumerated cases listed in Rule 81 (admiralty, maritime law, etc.).
This rule is historic because it merged the procedural laws of law and equity into one uniform standard. Prior to this, each side had its own set of rules that created confusion for litigants. Such is indicative of the general trend of the Drafting Committee, which attempts to move away from hyper-technical rules.
“[The rules] should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
This clause provides rules of interpretation for the Federal Rules. However, notice that the values tend to conflict with each other, particularly “just” and “inexpensive.”

Fed. R. Civ. P. 2: One Form of Action

All actions are civil actions.

Fed. R. Civ. P. 3: Commencing an Action

All civil actions are started by filing a complaint with the court.

Fed. R. Civ. P. 4: Summons

4(a): All summons must name the court and the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, state the time in which the defendant must appear in court, notify the defendant that failure to appear will result in a default judgment against the defendant, be signed by the clerk, and bear the court’s seal.
4(c): A summons must be served with the complaint, and can be served by anyone over eighteen.
4(d): Plaintiffs may file a waiver of service by letting defendants know of the impending action.
4(e)-(j): These rules deal with serving specific entities.
4(k): See Fed. R. Civ. P. 4(k), infra.
4(m): If a defendant is not served within 120 days of a filed complaint, the court must dismiss the action without prejudice, unless the plaintiff can show good cause for the failure. If such is the case, the court must extend the time period.

Fed. R. Civ. P. 5: Serving and Filing Pleadings and Other Papers

5(a): Unless the court states otherwise, service is required for orders, pleadings, discovery papers, written motions, and judgments.
5(b): Service must be made to an attorney unless otherwise specified. Service can be made by handing it to a person, leaving it at a person’s office, mailing it, leaving it with the court clerk, sending it electronically, or delivering it through any means that the adverse party has consented to.

Fed. R. Civ. P. 6: Computing and E

andard, the Court determined the scope of Twombly.

Justice KENNEDY, writing for the majority, provided a two-pronged approach for judging the sufficiency of notice pleadings. First, courts cannot accept legal conclusions as true in a plaintiff’s complaint. Second, complaints must state a plausible claim for relief in order to survive dismissal.
Using this test, the Court dismisses Iqbal’s claims as “threadbare assertions,” noting that he failed to move his claim from conceivable to plausible.
Justice SOUTER, writing in dissent, notes that the majority’s fallacy is taking each part of the complaint out of context. Rather, he believes the complaint should be taken as a whole. SOUTER also laments the majority’s evisceration of Rule 8(a)(2), noting that it would be near impossible for plaintiffs to meet the burden established by the majority.

Collectively known as “TwIqbal,” the two cases shook up the legal community with the newfound requirement for heightened pleading standards. Senator Arlen Spector (R-PA) attempted to restore the status quo through legislation, but was unsuccessful.

Supporters of the bill argued that TwIqbal was too large a departure from the past and disadvantaged certain plaintiffs, namely civil rights and personal injury plaintiffs. They additionally argue that such a standard forces judges to be fact finders at too early a stage in the litigation.
Opponents argued that the heightened standard stops unmeritorious lawsuits from percolating through the legal system, noting the over-litigiousness of the United States.

Responding to Complaints: Answers, Motions, and Affirmative Defenses

Fed. R. Civ. P. 8: General Rules of Pleading

8(b)(1): In answering a complaint, a party must state “in short and plain terms” its defense to each claim, and admit or deny each allegation asserted by the plaintiff(s).
8(b)(5): If a party lacks knowledge or sufficient information to form a belief, they must state so; the effect of such a statement is a denial.
8(c): In answering a complaint, a party must state any affirmative defenses. If a party mistakenly designates an affirmative defense as something else, the court must interpret the mistaken defense as if it were properly designated.

Fed. R. Civ. P. 12: Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrail Hearing

12(a): In general, a party must answer within 21 days of being served. The same timeframe applies to replies to answers.
12(b): Parties can assert any of the following defenses in their answer or by motion. But if an answer is required, they must be made by motion first.

(1): lack of subject-matter jurisdiction

(2): lack of personal jurisdiction
(3): improper venue
(4): improper process
(5): improper service of process
(6): failure to state a claim upon which relief can be granted
(7): failure to join a party under Rule 19

12(c): A party can move for judgment on the pleadings after the answer (or subsequent reply) has been filed.
12(d): If matters outside the pleading have been presented under a 12(b)(6) or 12(c) motion, the motion must be converted to a motion for summary judgment under Rule 56. The parties must be given a reasonable opportunity to present material facts.
12(e): If the pleading is “so vague or ambiguous that the party cannot reasonably prepare a response,” that party may move for a more definite statement. The motion must detail the specific defects and the details requested. The court may also order the motion, which must be complied within 14 days.
12(f): If there is material in a pleading that is “redundant, immaterial, impertinent, or scandalous,” the court sua sponte or the party may make a motion to strike (within 21 days of being served).
12(g): Any motions available under this rule can be joined, except for defenses that were waived.
12(h)(1): Defenses 12(b)(2)-(5) are considered waived if not included in the answer or not made by motion.
12(h)(2)-(3): Defenses 12(b)(1), 12(b)(6), and 12(b)(7) can be raised at any time. Courts must assess whether they have subject matter jurisdiction.