Prejudice arguments must be very very fact specific, can’t just allege general inconvenience.
For diversity: make sure each party is distinctly and completely (on each side of the v) diverse, then focus on the categories and allowed groups under 1332.
Argue substantive v. procedural in Erie type hypos, then outcome determination in Guaranty, then under Hannah, Fed Subst. triumphs.
Start Pers. Jurs. Analysis by disclaiming traditional bases for jurisdiction (domicile, consent, appearance, service) Then talk about minimum contacts analysis, and only then differentiate general v specific jurisd.
USE CHART ON PG. 854
Res judicata an affirmative defense (so it has to be raised in the Answer to the Complaint or it will be waived,).
Remember Sect 1391: VENUE GENERALLY
Motion to Dismiss, FRCP 12, and Summary Judgment are connected FRCP 56
THERE MAY BE FACT PATTERNS THAT MEET THE TRANSACTIONAL TEST, BUT NOT THE COMMON QUESTION TEST FOR RULE 20: IE., THAT MEET THE SAME FACTS, BUT NOT THE SAME LEGAL ISSUE IE, NEGLIGENCE VS. BATTERY, AND THEREFORE, JOINDER MAY NOT BE PERMISSIBLE.
EXAM: Set up a quick reference for the Rules:
Say what the standard is and why something is or isn’t appropriate.
Remember that by not answering an allegation in a complaint (ie. Ct has jurisdiction) that is the same as consent or agreement.
– Courts apply 2 sets of law: procedural (explores the procedures used by the courts to resolve substantive disputes) and substantive(ie., tort, contract- define the standard of liability to be imposed in any case)
– Either get monetary damages or injunctive relief in civil cases. Usually, both the plaintiff and D are private parties, although the federal and state Gov’t can be a D in a given case.
– What does Civ Pro mean?
o In litigation, civ pro is crucial the minute you meet your client.
o The rules of proc. Govern how you pilot the claim through the legal system. Translate the client’s story into a complaint which can be used to commence jurisdiction.
o Do we have enough facts to survive the D’s motions to dismiss?
o Need to do lawyering 101: lawyer’s job to find out all the details about every case. Lawyers can be sanctioned for bringing claims that are meritless or frivolous. Is there an actionable claim here?
o Is the available remedy worth the cost of representation?
o In the transactional context, civ pro is just as impt. The drafting of employment agreements, M+A agreements, securities agreements, always occurs in the shadow of litigation. There always exists the possibility that relationship will sour and someone will feel strong enough to sue.
– Policy questions to keep in mind:
o What is the power of procedure?
o Why do we care?
o How should a given society resolve its disputes? Ie., the availability of summary judgment: should a civil dispute be resolved by a judge or a jury in its fact finding role?
o There are certain disputes that a court system should not accommodate, ie., disputes bet. foreign nations that did not occur on U.S. soil, or foreign P’s.
o How do economic disparities affect access to justice? Our court system relies on filing fees, appearance fees, lawyer fees, etc. What does this mean for people living in poverty who cannot afford to pay these fees?
o What power should judges, who are mostly not elected, have to resolve dispute resolution? What is the proper scope for judicial authority?
o Should the specific words and text of the rules actually limit those with the power to enforce them, like courts?
§ How do the rules of proc. relate and affect what we call justice?
– Learn the rules that govern civ pro. How do we use these rules strategically? How do we use these rules in practice?
– How are rules interpreted and applied?
– What is the contour of the doctrine that have risen around the rules? What is the limit of what makes summary judgment possible? Policy considerations.
– Problems with witness memory, perception. What is real? Whatever the fact finders say is real?
– “Real Evidence” = Concrete facts.
– Physical evidence is real, ie., skid marks. How those skid marks are caused is not real. A child with a broken leg is a real fact, how the injury happened is up for debate
– Law is real: Textual basis and settled matter makes it real.
– As lawyers, we don’t have an unbounded playing field. The law does not always dictate what the result will be, and the elusiveness of facts makes it malleable.
– Even though an advocate will be pre-committed to their client, why do we trust lawyers.
– Restrictions on access to justice may lead to violence.
– The law and legal system feels delegitimized to a lot of people. History of prejudice for minorities.
Milner Ball: Man is an aggressive animal. The court system serves to provide a break on that aggression. Avoid mayhem and violence. Legal system is a safety valve. However, a certain segment of the population won’t accept the legal system and will always resort to violence.
– Can a trial presentation be a metaphor for what actual happens?
– Is the art of recreating what happens in a trial a lost art?
– SHE CARES ABOUT HISTORICAL CONTEXT: Procedural doctrine has changed a lot over time. Its important to note when a case takes place.
AN INTRODUCTION TO CIVIL PROCEDURE
B. AN OPENING CASE: THE POWER AND LIMITS OF COURTS
UNITED STATES V. HALL.
Facts: On June 23, 1971, district court entered a court order in the case of Mims v. Duval Country School Board requiring the Duval County school to desegregate in accordance w the Supreme Court decision in Swann v. Charlotte-Mecklenburg School of Education. District court retained jurisdiction to enter orders as might be necessary in the future to effectuate its judgment to desegregate. After the desegregation order, racial unrest and violence developed at the Ribault (formerly white) school. On March 5, 1972, superintendant of school petitioned for injunction, alleging that certain black adult “outsiders” were causing and abetting the unrest. Petitioner identified defendant Eric Hall as one of these outsiders who were preventing normal operation of Ribault. An ex parte decision on March 5, 1972, the district court entered an order stating that “persons with notice of the order are restrained from preventing the attendance in classes of students and faculty members or any other act to disrupt the orderly operation of Ribault. Until further notice, no person shall enter any bldg of the Ribault high school or go upon the school’s grounds. Anyone having notice of this order who violates any of the terms shall be subject to arrest.” Court ordered the sheriff to serve copies of the order on 7 named persons, including Hall. Hall was not a party to the Mims trial. Hall was notified by his friends about the order. On March 9, 1972, Hall violated the order’s portion that restricted access to the Ribault campus. Hall replied that he was on the grounds to violate the March 5 order and he was arrested, charged w criminal contempt and sentenced to 60 days in prison.
Procedure: Hall appealed claiming that he cannot be held in contempt of court because he was not a party to the Mims litigation and so he cannot be bound by the Mims court order.
Issue: whether a district court has power to punish for criminal contempt a person who was not a party to the case not had a relationship with a party, but violated a court order designed to protect the court’s judgment in a school desegregation case?
FRCP RULE 65(D) LIMITS THE BINDING EFFECT OF INJUNCTIVE ORDERS TO “PARTIES TO THE ACTION, THEIR AGENTS AND ATTORNEYS AND …THOSE PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH THEM WHO RECEIVE ACTUAL NOTICE OF THE ORDER BY PERSONAL SERVICE OR OTHERWISE.”
HOLDING: DISTRICT COURT HAD THE POWER TO CHARGE A NON-PARTY TO THE CASE WITH CONTEMPT OF COURT FOR VIOLATING THE COURT ORDER. HALL’S RELATIONSHIP TO THE MIMS CASE FELL WITHIN THAT CONTEMPLATED BY 65(D) AND IN DECIDING MIMS THE DISTRICT COURT HAD ADJUDICATED THE RIGHTS OF THE ENTIRE COMMUNITY WITH RESPECT TO THE SCHOOL SYSTEM. District court has the ability to protect its ability to render a binding judgment btwn the original Mims parties by issuing a temporary ex parte order against an undefinable class of persons.
· Distinguishes Hall from common law cases bec in Alemite and Chase, the
ng or concert with anyone 65D(2)(c) or is a member of the parties’ officers, agents, servants employees 65D(2)(b)
Law and legal decisions depend on more than rote, mechanical application of the rules.
Injunctive relief here is easily disrupted by third parties and to protect court’s right to adjudicate, need to enforce injunction against non-parties sometimes.
· Tension between formality of the rules and context of their application
o Flexibility and discretion v. predictability and uniformity
· Relationship between rules and judicial power
o Here, court enlarges its own power
– Was the ruling unlawful? It didn’t have a CL precedent and didn’t follow the FRCP
o One could do a balancing act btwn Hall’s right of Due Process (right to be one of the groups w/in 65D against the court’s interest (enforcing its own decision?)
o Ct admits that it didn’t have the power to order an indefinite injunction against the whole world. Limitations on its power are expressed already in Alemite and Chase. Ct seeks to clarify the rule, not overturn it.
o THINK OF THE FRCP AS A GUIDE IN ADDITION TO THE CT’S CL POWER
– Sources of Rules:
(1) Federal Rules
EX PARTE PROCEEDING: A proceeding commenced by one party (only 1 party present) without providing any opposing parties with notice, or that is uncontested by an adverse party. Ie., Gucci is concerned that Burberry is manufacturing a duplicate of my purse. Gucci initiates an ex parte proceeding to keep Burberry from making it, because otherwise, Burberry could interfere.
The ex parte order named Hall as one of the individuals to be kept from entering the school.
In this instance, the punishment for disregarding the order is criminal contempt.
Contempt: An act calculated to obstruct the court and its ability to provide justice
Civil Contempt: Usually used for remedial purposes. Failure to comply with ct’s orders.
Criminal Contempt: Willful violation of a court’s order and proof of the violation must be established beyond a reasonable doubt. The burden of proof is very high because the potential punishment is criminal and can involve imprisonment.
– Hall doesn’t contest that he’s a party to the lawsuit.
– Common Law Rule:
C. THE RIGHT TO BE HEARD: ELEMENTS AND HISTORY OF DUE PROCESS:
(1) NOTICE (2) THE RIGHT TO BE HEARD” : very flexible and fact specific (“meaningful right to be heard”). Very few rules when it comes to due process.
– MATHEWS V. ELDRIDGE RULE: THE PROCESS DUE IN ANY INSTANCE IS DETERMINED BY WEIGHING THE (1) PRIVATE INTEREST THAT WILL BE AFFECTED, (2) THE RISK/POSSIBILITY THAT THE PROCEDURE PRODUCED ERRONEOUS RESULTS (ARE ADDITIONAL SAFEGUARDS NECESSARY?) (3) THE BURDENS THAT THE GOVERNMENT WOULD FACE WITH THE ADDITIONAL DUE PROCESS.
– Incorporates the fundamental treatment of persons conveyed as fairness under the rule of law.
– What process is due specifically? Is it a hearing? Is it a right to challenge the accusation? What is required? Is anything required?
Due Process Elements (unofficial):
– Low cost access to dispute resolution
– Education(civic) to demystify the process
– Advance notice in first language/native language
– Access to effective communication
– Lengthier notice periods
– Quicker trials