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Civil Procedure I
Temple University School of Law
Hoffman, David A.

Civil Procedure I

Prof. Hoffman

Spring 2013

Temple Law

I. Due Process: The NOTICE and OPPORTUNITY to Be Heard

A. FRCP #1 (Purpose of FRCP)

1. “[Rules] should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

B. Opportunity to be Heard and the Matthews Test

1. Due Process requires an opportunity to be heard prior to the seizure of any interests protected under the 14th Amendment (life, liberty, or property).

2. The only exception is in extenuating circumstances, when the interest in public security overrides private interests. In Hamdi v Rumsfeld, SCOTUS used the Matthews Test to balance public interest (security and administrative efficiency) vs. private interest (liberty) vs. the possibility of error in order to determine when suspension of Due Process is appropriate. Hamdi (enemy combatant) was allowed actual notice and some limited opportunity to contest factual basis for that detention before a neutral decisionmaker (even though hearsay was admissible)

3. “Usually, the balance mandated by Matthews comes out in favor of the government and restricted rather than elaborate process.” Cynical view – “At times this balancing process looks as if it were undertaken with a thumb on the scale, depending on the result the Court desired . . . .” This is also applicable to summary judgment.

C. Notice

1. Due Process obviously applies to state action. But what is the scope of notice for private action? Is it a constitutional issue if a private institution ignores due process considerations?

2. Mullane standard: Notice must be given by a means

a. Reasonably calculated under the circustances

b. To inform interest parties of the pendency of the action, AND

c. Afford them with an opportunity to present their objections

3. FRCP #4 (Service and Notice)

a. First step is possible Waiver of service of process (Send a letter or something like that asking the party if its cool to waive actual service because its expensive and potentially unnecessary. If you agree to waive service, you get more time to answer the complaint.)

b. If ∆ does not waive:

(1) Follow state rules for service. However, the constitution trumps state rules. So if, under the circumstance, the state rule is insufficient (i.e. Greene, where posting notice on a door might be adequate under some circumstances, but it may be inadequate in an environment where it is known that the posting is likely to be removed), then do any of the following:

(a) Deliver the summons and complaint in person (includes MAIL, insofar as delivery is reliable and consistent – Jones v Flowers)

(b) Give both to someone at the residence of suitable age and discretion

(c) Deliver both to an authorized agent (usually party’s lawyer) (Szukhent)

(2) Notice by publication is only sufficient when alternative means of notice are not possible or practical or as a supplemental method of giving notice (e.g. in rem proceedings where property has been seized and the seizure provides notice as well)


A. FRCP #65 (Injunctions and Restraining Orders)

1. In Walker v City of Birmingham, petitioners are held in contempt of court for violating a temporary injunction issued by the court

a. Collateral bar rule: unless transparently unconstitutional, a court order must be obeyed until appeal.

b. “…no man can be judge in his own case…But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”

c. Dissent argued that the temporary injunction ordered was patently unconstitutional. Whether or not a court order is constitutional is an issue.


A. In Lassiter v Dept. of Social Services, an indigent mother who neglected her child argued her right to counsel under Due Process Clause (14th Amendment). Was she entitled to counsel even though it was a civil case? Counsel is a right only whenever the defendant’s personal freedom is at stake.

1. Matthews test applies here (same as in Hamdi). If, in a given case, the parent’s interests were at their strongest, the State’s interests were at their weakest, and the risks of error were great, the Matthews factors would overcome the presumption against the right to appointed counsel, and due process would require appointment of counsel.

2. But ultimately, the court holds that the presence of counsel would not have made any difference in the turnout of the trial.


A. Pleadings refer to filings submitted by parties to present their case. Pleadings generally include: complaint, answer, and reply

B. Complaints/Pleading Standards

1. Under FRCP 8(a), the petitioner in its complaint has the burden of pleading the basis for the court’s jurisdiction over the matter, a “short and plain” statement of the claim showing a right to relief, and a demand for judgment.

a. After the complaint, the respondent can either move (Rules 12(b), (e), or (f)) or answer (Rules 8 and 12)

2. Traditionally, petitioners didn’t need to include many detailed facts in support of the allegation in the complaint. Conley set a very low bar for getting to the discovery phase. As long as a complaint leaves open the possibility that the plaintiff would find some fact to support recovery, the complaint cannot be dismissed [but remember, this is NO LONGER THE STANDARD USED]–> “A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the π can prove no set of facts in support of his claim which would entitle him to relief”

a. Advantage of Conley: Easier access to courts, especially for poor litigants (could be a pro or a con)

b. Disadvantages of Conley: Courts could get overloaded; higher possibility of frivolous lawsuits

3. As discovery process became more expensive (advent of technology, nationalization of legal profession, etc.) it was important for the courts to play the role of gate keeper so that frivolous lawsuits do not go to the discovery phase. This standard changed in Bell Atlantic Corp v Twombly [use if ∆ asserts 12(b)(6) motion to dismiss]

a. Conley standard is overruled: Conclusory statements of claims will no longer survive a motion to dismiss. Instead, a complaint must contain enough facts to raise a reasonable expectation that the discovery process will reveal relevant evidence to support the claim.

b. There must be enough factual information in the complaint to evince plausibility: “A π’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

c. “We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face”

d. This requirement is to protect defendants from meritless claims in which plaintiffs hope to find some form of evidence in the discovery process. Discovery is expensive and time-consuming. Thus the district courts must act as gatekeepers and dismiss claims that do not point to some fact that supports a plaintiff’s claim.

e. What does plausible really mean though? Facial plausibility means that the facts alleged permit a “reasonable inference” that the defendant is, in fact, liable. The plausibility determination in any particular case is left to the reasoned and experienced judgment of the trial

ust, speedy and inexpensive resolution to their controversies.

(2) Rule 56(c): Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 12(b)(6) preempts pleadings, depos, etc.

6. The SJ Trilogy

a. Celotex Corp v Catrett

(1) RULE: A party making a motion for summary judgment does not need to provide affirmative evidence in the form of affidavits to support its motion.

(2) While the moving party does not need to present affirmative evidence, the nonmoving party is expected to present some form of affirmative evidence to overcome the challenge

b. Matsushita Elec. Indus. Co. v Zenith Radio Corp

(1) Complex antitrust case in which the π alleged that the ∆s had engaged in illegal price-fixing by setting prices at an artificially low level, so called predatory pricing. After years of discovery, the district court granted SJ to the ∆s, and that decision was ultimately held by SCOTUS. The issue was “whether [Zenith] adduced sufficient evidence in support of their theory to survive summary judgment.”

(2) Because the sort of collusive behavior alleged is so hard to pull off, the court held that a higher standard for SJ was needed. Because there were “equally plausible explanations,” there wasn’t enough evidence to uphold a SJ motion.

(3) While the general rule is that inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, the substantive body of law may limit the range of permissible inferences. For instance, in complex cases where litigation would be very expensive, there is a “thumb on the scale” in favor of granting summary judgment

c. Anderson v Liberty Lobby

(1) RULE: A court should consider the evidentiary standard when deciding a motion for summary judgment. Also pertinent in Matsushita.

(2) In deciding a motion for summary judgment the court concludes whether a reasonable juror could find for the non-moving party. Inherent in this determination is the evidentiary standard. That is, the court cannot decide whether a juror could reasonably find for the non-moving party without considering the evidentiary burden.

(3) “The judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. There mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

d. Justice Brennan, a dissenter is every case in the trilogy, attacked the majority’s analysis as “deeply flawed” and expressed apprehension that the Court’s approach would “transform what is meant to provide an expedited summary procedure into a full-blown trial on the merits.”