CIVIL PROCEDURE OUTLINE
***Policy considerations: truth, fairness, justice, efficiency, and conflicts of the like***
I. Remedies
a. Types of remedies
i. Substitutionary à most are of this type; most common is monetary
1. Liquidated à parties agree beforehand to calculation of compensatory damages (usually given for K breach and denied if unreasonably large)
2. Statutory à set minimum damages not tied to amount suffered (encourages enforcement of public policy, i.e. speeding tickets)
3. Punitives à aim to punish D; if too large will be challenged under due process
ii. Specific Remedies
1. Specific performance, ejectment (legal), replevin (legal), constructive trust, rescission/reformation/cancellation, accounting, injunction
iii. Declaratory relief
1. For disputes not solved by damages or specific remedies
2. USC §§2201-2202 allows parties to seek declaration of rights w/out seeking damages or specific relief
3. FRCP 57
a. Existence of another adequate remedy does not preclude a judgment for declaratory relief (where appropriate). Courts can order speedy hearing of such actions.
iv. Provisional remedies/interlocutory injunctions
1. General
a. Interlocutory injunctions are equitable remedies by which a person is ordered to act or refrain from acting in a specified manner; granted to maintain status quo until trial on the merits may be held
b. Test for granting preliminary injunction
i. P will suffer irreparable injury if not granted
ii. P likely to prevail on merits
iii. In balancing equities, D will not be harmed more than P is helped by injunction
iv. Granting it is in public interest
c. Alternative test
i. Instead of showing P likely to prevail and suffer irreparable injury
i. Serious Qs raised and balance of hardships is heavily on P
ii. Harm to P is sufficiently serious and P has fair chance of success on the merits
iii. In balancing equities, D will not be harmed more than P is helped by injunction
iv. Granting it is in public interest
d. Note; applying the alternative test alleviates the burden on the P whereas the general test provides a steep hurdle for the P to meet (usually providing a case so obvious so to prevail on the merits)
i. Inglis Baking v. ITT Baking
a. F: P wants preliminary injunction against D b/c they were guilty of price discrimination and below-cost pricing which P contested would put them out of business unless granted a prelim injunction
b. I: should P be granted prelim injunction
c. H: no, the P’s case fails to meet the 4 requirements of the general test, sent back to test under the alternative
d. Note: if P were to prevail on the grant, D likely to argue policy matter in that they are trying to serve low income families
e. TRO’s ex parte à generally notice must be given before a TRO issued, unless 3 requirements met (FRCP 65(b),(c))
i. Specific facts showing immediate and irreparable injury must be made in affidavit or verified complaint
ii. Moving party must certify in writing all efforts made to give notice and reasons why notice s/n/b required
iii. Moving party must provide security (amt determined by court) for any costs/damages incurred by adverse party if wrongfully restrained
iv. Note à even if all requirements met, court still has discretion to grant, may look at likelihood P will prevail, weigh injury anticipated and harm to D
2. Rules
a. FRCP 65
i. (a)(1) preliminary injunctions àmust notify adverse party to issue
ii. (b) temporary restraining order àdoesn’t require notice to adverse party if: 1) immediate or irreparable damage will result before opposing party c/b heard; 2) applicant’s attorney certifies in writing the efforts made to notify and reasons why notice s/n/b required; default duration = 10 days unless good cause is shown for extension or adverse party consents
b. Due process (14th Amendment) ….main focus on property
1. General
a. no person s/b deprived of life, liberty, or property w/out DP (their day in court)
i. Thus, when a D is served w/ a TRO or a preliminary injunction, does this violate DP?
b. mere notice is not sufficient, the adverse party must have the opportunity to be heard, and the notice must be in a timely and meaningful manner
c. exceptions (Mathews v. Eldrig à evaluates the need for emergencies)
i. immediate danger (destruction or concealment of property)
ii. important governmental or public interest (consider function involved, fiscal/admin burdens)
2. Examples (is there a violation of DP?)
a. ex: notice given before repossession of property, hearing is day after repossession àviolates DP (no opportunity to be heard)
b. ex: seller produces an affidavit indicating the right to recover property à violates DP (no opportunity to be heard)
c. ex: seller produces affidavit claiming they must repossess b/c the buyer is about to destroy the property à does not violate DP (satisfies an exception of DP that there is an immediate need to recover property due to threat of destruction)
d. ex: towing of car in tow-away zone w/out notice to car owner à does not violate DP
e. ex: health inspector finds bacteria and orders restaurant closed w/out a prior hearing à violates DP (strong government interest in providing safeguards to general public
f. ex: health inspector finds rusty knife blade and orders restaurant closed à does not violate DP (just throw knife out, government interest not strong enough)
3. cases
a. Fuentes v. Shevin
FRCP
12
(b)(6)
pleading dismissed if pleading fails to state a claim in which relief can be granted
in asserting this motion, if matters outside of the pleading are presented to and not excluded by the court, the motion is treated as summary judgment and disposed under Rule 56, all parties s/ get a reasonable opportunity to present all materials pertinent to Rule 56
b. Ethical limitations
i. General à sanctions
1. Discretion of court to impose (order must describe basis of violation and sanction)
2. Limited to what is sufficient to deter repetition of such conduct
3. Monetary sanction presumptively paid to court
4. Look at advisory committee notes for variety of possible sanctions
5. Law firm jointly responsible for violations by its attorneys
6. Monetary sanctions cannot be awarded against represented party for violation of Rule 11(b)92)
ii. Rules
FRCP
11
(a)
all pleadings & motions must be signed by an attorney of the record
(b)
by pleading/making a motion, attorney/unrepresented party is certifying that the info submitted is to the best of their knowledge
(c)
if (b) is violated and reasonable time to respond has lapsed, sanctions may be appropriate
(d)
(a) – (c) do not apply to discovery requests, responses, objections, and motions subject to provisions of Rules 26 -37
***Under the rule lawyer certifying that inquiries made are reasonable under the circumstances and the allegations in the compliant have evidentiary support and are not frivolous***
iii. Cases
1. Walker v. Norwest Corp.
a. Rule 11 sanctions appropriate where P asserted diversity jurisdiction but failed to prove the citizenship of the parties, thus could not prove diversity jurisdiction
2. Christian v. Mattel Inc.
a. Court awarded sanctions against attorney, which were later vacated b/c it was said such sanctions were brought on the grounds of his extreme behavior during discovery for which Rule 11 sanctions are not allowed.à They are meant to allow the court to order payment of attorney fees and costs incurred in defending against a “pleading, written motion, or other paper” which is frivolous, intended to delay or harass, or factually unsupportable.
c. Special pleading rules
i. General
1. Exceptions to short/plain requirement, more detail required if pleading concerns fraud, mistake, special damages
2. Special pleadings à requiring complaint to be made w/ “particularity”
3. Why heightened requirements
a. alleging fraud c/ damage reputation of other party
b. Intend to protect one party and disfavor the other making it difficult to bring claims against those parties
ii. Rules
