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Civil Procedure II
St. Louis University School of Law
Pendo, Elizabeth A.

CIVIL PROCEDURE II OUTLINE
RIGHT TO A JURY TRIAL
a. 7th Amendment
i. “In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”
ii. Enacted in 1791, under the 7th Amendment the right to a jury trial shall be preserved in federal courts (but not state courts) for actions at common law where more than $20 is in dispute.
b. Common Law Legal and Equitable Claims as of 1791
i. Common Law Legal Claims – usually seeking a monetary remedy (right to a jury trial)
1. for damages for breach of contract
2. for damages for negligence
3. for damages for harm caused by a nuisance
4. for ejectment from property wrongfully occupied by D
5. for damages resulting from D’s wrongful possession of P’s property
6. for conversion
7. for replevin
8. for recover of a fraudulent conveyance See Granfinanciera
ii. Equitable Claims – usually arises when no legal remedy exists (no right to jury) i.e. injunction, specific performance…
1. for specific performance of a contract
2. for reformation of a contract
3. for rescission of a contract
4. for injunction to stop continuation of a nuisance, negligence or breach of contract
5. for an accounting See Dairy Queen
6. for declaratory judgment
c. Determining whether a claim arising after 1791 is legal or equitable:
i. Congress has the power to enact federal statues and create new causes of action that must be adjudicated in specialized administrative proceedings, rather than through trial by jury
a. Such statutes do not violate the right to jury trial in situations where the government is using the statute to enforce public rights (cases where the Government sues in its sovereign capacity to enforce a public right created by statute w/in Congress power to enact)
b. If it is a “private right” then the right to a jury trial is preserved, regardless of Congress’ classification
ii. However, if Congress was silent on the causes of action created and the right to a jury trial we must look to the nature of the right created in the statute
iii. As illustrated in the Granfinanciera case, the Court uses a two part test to determine whether an action is at common law:
1. First inquiring if the cause of action (or one to which it is most analogous) would have received a jury trial in 1791 (time of adoption of the seventh amendment) because it would have been heard by a law rather than an equity court; and then
2. Inquiring whether the type of remedy sought seems more legal (common law) or equitable (not common law)
a. Granfinaciera also suggests that the second inquiry is more important than the first
d. Rule 38(b) – Asserting a right to a jury trial
i. The federal right to a jury trial is waivable
ii. Parties must assert their right to a jury trial under the 7th Amendment by making a timely demand
1. Rule 38(b) provides that a demand for a jury trial must be made in writing and served on the opposing party no longer than 10 days after the service of the last pleading directed to such issue under Rule 38(b).
e. Beacon Theaters – applies when there are shared facts for both legal and equitable claims
i. After Beacon – if there are both legal and equitable claims that involve common factual issues, the legal claim must be tried to a jury first and then the judge may rule on the equitable claims using the facts determined by the jury
1. “and no fact tried by the jury shall be otherwise reexamined in any court of the US”
2. So what the jury finds, the judge has to accept
ii. Beacon abolished the “Clean Up Doctrine” which provided for a court to decide equitable issues and then “clean up” any incidental legal issues
iii. You can only get rid of a jury trial under the most “imperative circumstances” (not sure when this applies)
f. Dairy Queen
i. This case tells us that in determining between a legal and equitable claim you can’t just look at the cause of action, but must look to the remedy that is actually being sought
1. Dairy Queen stated in their claim that they were seeking an accounting (which is a traditional equitable remedy) but were actually seeking damages (legal claim) therefore, the claim was legal and there was a right to a jury trial

PREJUDGMENT REMEDIES
a. The Due Process Clause of the 5th Amendment, applied to the states through the 14th Amendment, generally has been read to require the government to

ether “exigent” or “extraordinary” circumstances are present. Fuentes v. Shevin.
i. Exigent circumstances are present when:
1. the seizure is necessary to secure an important governmental or public interest,
2. very prompt action is necessary, and
3. a government official initiated the seizure by applying the standards of a narrowly drawn statute.
f. Connecticut v. Doehr
i. Prejudgment attachment of property without bond where the property in question has nothing to do with the action does not satisfy the demands of Due Process

PERSONAL JURISDICTION
a. There are two branches of jurisdiction: subject matter jurisdiction and personal jurisdiction
b. Personal Jurisdiction – involves the ability of a court having subject matter jurisdiction to exercise power over a particular defendant or item of property
c. Limits on Personal Jurisdiction
1. Statutory Limitations
a. States have the power to decide over whom their courts may exercise jurisdiction. We first look to the state statute (long-arm) to determine if it grants the court the power over the parties before it.
2. Constitutional Limitations
a. Due Process Clause places two restrictions on the exercise of personal jurisdiction. First, the D must have such contacts with the forum state that the exercise of jurisdiction would be fair and reasonable. Second, the D must be given appropriate notice of the action and an opportunity to be heard.
b. Note: these are the outer limits to which a state may exercise PJ. A state statute cannot exceed these Due Process requirements, but it is not required to exercise the full limit of constitutional power.
d. Three Types of Personal Jurisdiction
1.In personam– “over the person”
1. court has power over the D himself (b/c of some contact with forum)
a. subject to Minimum Contact analysis