CIV. PRO II – Redding – SPRING 2010
Rule 8. General Rules of Pleading
(a) Claims for Relief.
A pleading that states a claim for relief must contain:
1. a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
2. a short and plain statement of the claim showing that the pleader is entitled to relief; and
3. a demand for the relief sought, which may include relief in the alternative or different types of relief.
You have to tell which relief you want. And if the client wants something where the incentive will not be high to litigate – the lawyer should tell the client that the remedy isn’t worth it considering the price of litigation.
A. Substitutionary Remedies – Most remedies fall within this category considering that you cannot repair a limb that someone may have lost due to a defendant’s negligence – in this instance the remedy is a money settlement or judgment
a. Compensatory Damages
i. Rules of substantive law contain rules for the measurement and proof of damages.
ii. If P brings a claim they will need to prove not that D breached a valid agreement, but also that P purchased substitute goods at the the-prevailing market prices, failure to prove this will mean that D wins a motion for summary judgment or a directed verdict.
iii. Procedural rules serve as gatekeepers of substantive law
iv. Non economic harms are such things as pain and suffering or emotional distress
1. Contemporary US law uses damages to compensate for these non-economic harms as well in the same manner as an economic harm.
v. There are not many guidelines to dictate how juries may direct
1. One way: Take an hour of the suffering – monetize it then multiply times how long it took place.
b. Notes and Problems p. 270
i. Motion for directed verdict or summary judgment
ii. Ruling denied, damages should be cut and clear economically, there is no proof of noneconomic damages which may be not so cut and dry.
iii. That it is definitive proof of the duration of the pain and suffering.
iv. ???????????
c. Part 2
i. Sometimes the damages in question has no market and therefore a specific economic remedy is not obvious.
ii. Sometimes there is a market, but P has no access to it. In tort you have to mitigate the damages when possible, but you are not expected to do so when you are financially unable to.
iii. Individualization of damages makes issues as well to determine the amount remedy that would be adequate to each individual plaintiff in each case.
iv. Court costs come out of the successful litigant’s pocket, they have to pay their lawyer.
v. Interest is incurred upon judgments that start sometimes from pretrial motions to the actual time of judgment between those times and when the judgment is paid. D then owes interest that varies by jurisdiction.
B. Liquidated, Statutory, and Punitive Damages
a. Statutory Limitations on Liquidation – taking damage and making it money. Cuts down the amount of time to show what the economic or non-economic damage is valued at. If it is liquidated it saves time.
i. Mostly in hard to assess damages cases where the parties could agree on a proper amount.
ii. Cannot liquidate a $500 debt for $1k.
iii. There are Minimum damages so set sometimes by statute.
iv. Bad check litigation is also the same way.
b. Liquidated Damages are when two parties get together and agree on a price for any noneconomic harm that arises.
c. Punitive Damages
i. Punishment is the goal for willful and wanton misconduct on the part of the defendant.
ii. Merging of criminal and civil action.
iii. Deterrence is a factor here.
iv. Roles in strategy:
1. Wildly unpredictable – say some, without the proper correlation between behavior and punishment.
2. They are rare to begin with; however, and not typically set to an astronomical level. 50k is the median.
v. Extraordinarily large punitive damages are in violation of the Due Process Clause, say some courts and punitive damages should be based upon:
1. Degree of responsibility
2. Disparity between the actual or potential harm
3. Difference between the punitive damages and the civil penalties authorized or imposed in comparable cases.
C. Specific Remedies
a. The Idea of Specific Relief
i. Courts can order parties to do things or refrain from doing them and also enlist the help of officials in recapturing personal or real property from defendants in wrongful possession.
ii. Decree of Specific Performance – tells a party to convey a property for example under threat of contempt of court.
1. Example: A person sells the house and refuses to vacate, can get an order to vacate from the court that will get the sheriff to remove them from the premises.
2. Replevy – when a court orders a sheriff or marshal to return an item to its owner.
3. Injunctions – Command parties to stop doing any range of acts
b. An Excursus on Equity and Specific Relief
i. History
1. The English Legal system used to have different courts for different types of remedy sought. Courts of common law v. Court of Chancery (equity) for example.
ii. Injunctions
1. The most common of Specific Remedies – if the offending party does not obey the court order then they will be charged with contempt. This party could be jailed until they obey the order making injunction an extremely powerful weapon.
2. This is why there used to be debtor’s prison, not anymore because there are more legal options such as wage garnishments and property liens.
f you win the declaratory judgment then you can’t be touched by those outraged parents because of the preclusory effect on cases after it. The parents would have to prove each element.
2. It is conclusive. You can’t retry what has been ruled as unded a declaratory judgment. It is a normal judgment under odd pretexts.
v. P.290 Hypos
1. No, there is an ongoing controversy.
2. No, under 1332 there is 75k in controversy with a 1 million dollar patent. So Sam is probably okay.
3. No declaratory judgment, no controversy.
E. Financing Litigation
a. Who pays for what?
i. Courtroom, bailiff, judge, clerical staff – taxpayer money
ii. Expert witnesses, PIs, court reporters, court transcripts, filing fees – parties
iii. Attorneys’ fees = most costly part of litigation
iv. State plays a much bigger role in Civil than Criminal court.
b. Who pays for the attorney fees?
i. The clients
1. Rule 68 (d) – a wrinkle in Rule 54 (d) (1) that is set up to encourage litigants to settle.
ii. Opposing Party
iii. Society generally
iv. Lawyer herself (pro bono)
c. Differences in system
i. US – each party pays own fee
1. This leads to not pursuing claims that are strong but low in economic value.
ii. English – loser pays winner’s fees
1. Leads to strong but low damage cases
F. Provisional Remedies
a. Provisional remedies – used as relief pending final adjudication of the dispute.
i. Sometimes the law is to slow to provide a remedy to a plaintiff because the remedy would be worthless, if say, there could be none for a year and by then the plaintiff will go out of business due to lack of remedy.
b. What are problems with provisional remedies?
i. How should a court decide whether to grant temporary relief when all the relevant information is not yet available?
ii. When does such curtailment of ordinary procedures in granting a provisional remedy amount to denial of due process to the defendant?
c. Preliminary Injunctions and Termporary Restraining Orders: The Basic Problem
