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Civil Procedure I
Temple University School of Law
Carter, William M. "Chip"

Civil Procedure Outline- Carter

A. Why do we need Rules?
Consistent standards that are known in advance- know what the rules are to act in a reasonable way; need rules to govern how the substantive law is governed in cases
Due process- parties are put on notice about what they will be confronted with
Keeps proceedings efficient; allows parties to shape preparation and litigation in form with those rules
Why do we care about maximizing efficiency?
Limited resources, want to direct them to where they are most needed
Judicial system and private parties want to avoid unnecessary cost and time
Procedural justice/fairness- having “your day in court”- theory of justice shaped by people feeling as though they were treated fairly
Sometimes it matters more how you lose, not whether you lose
The need to regulate the parties and attorneys behavior- tempering adversarial proceedings
Litigators are not trained to be peace-makers- a lot of rules are aimed at tempering the adversarial zeal of most attorneys
Ex. One of the potential consequences of breaching the rules is dismissal of the attorney’s claim
v Band’s Refuse
o   FACTS: City awarded a contract for garbage collection; City passes ordinance that you have to get a permit to collect garbage and to get a permit you have to get a license from the city. Another garbage collection company wanted to sue the city about the awarding of the contract because they were not awarded a license to collect garbage within city limits and were suing for not being awarded the contract because of a monopoly of garbage collection in the city.
o   RULE: Intervention – Capassos get into the case by an intervention- requires that someone outside the lawsuit who wants to be in the lawsuit has a sufficient interest in the resolution of the lawsuit that letting them in would be fair; intervention overrides the plaintiff’s strategic choice
o   HOLDING: If a judge participates to an unreasonable degree in the conduct of the trial, even to the point of assuming the role of an advocate, what he does may be just as prejudicial to a defendant’s to a defendant’s rights as if the case were tried to a jury.
v Kothe
o   FACTS: Med. Mal case where the judge tells the parties that the case should settle for somewhere between $20,000-$30,000 and tells them that they should begin settlement negotiations. Judge knew that knew that the plaintiffs wanted to settle for around $20,000 but told them not to tell the other parties and the judge did not tell the other parties that- ex parte communications between the judge and the plaintiff (unjust). On the day of trial the case settles for $20,000. The judge was unhappy with this so he imposed sanctions on the parties who did not settle.
o   RULE: Intervention – Rule 16
o   HOLDING: This interference on behalf of the judge was improper because although the law encourages efforts to foster settlement those efforts do not include coercion
o   REASONING: Rule 16 was not designed as a means for clubbing the parties into an involuntary settlement, it should encourage pretrial settlement discussion, but not coerce parties into settling

A. The Historical Evolution of Pleading
Ø Rules
·         1- Scope and Purpose
·         2 – One form of action- civil action
·         3 – Civil action begins by filing a complaint
·         7 – Pleadings allowed
·         8 – General rules of pleadings: claim for relief; defenses, etc.
·         10 – Form of pleadings
·         12 – Defenses and objections: when and how presented; motion for judgment on pleadings; consolidating motions; waiving defenses; pretrial hearing
v Navajo Nation v. Peabody
o   FACTS: Corporate defendants that misrepresented facts between the DOI and the Navajo Nation in an attempt to defraud the Navajo Nation in an attempt to gain access to coal mines. The DOI has to approve all contracts between Native American nations and private parties. Allegation is that the process resulted in a 7.5% difference in royalty rate to the Navajo Nations.
o   RULE:
v Gillipsie v. Goodyear Service Stores
o   FACTS: D’s trespassed upon the premises of P, and by the use of harsh and threatening language and physical force caused P great fear and public humiliation as they took her to jail
o   RULE: Demurrers to

nesty in Pleading
Ø Rules
·         11 – signing pleadings, motions, and other papers; sanctions
v McCormick v. Kopman
o   FACTS:Lewis McCormick was killed when a truck operated by defendant Kopman collided with his car. McCormick’s widow sued Kopmann and the Hulls, owners of a tavern where McCormick had drunk beer before the accident. Filed 1 count against Kopman for wrongful death and another against tavern for selling him alcohol.
o   RULE: Rule 11
o   HOLDING: Inconsistent facts are allowed in a pleading unless the pleader knows that one set of facts is true and the other is not true.
o   REASONING: Counts are mutually exclusive; plaintiff may not recover upon both counts, but he can still plead both counts. Inconsistent pleading not allowed when pleader knew or should have knew which set of facts was true.
v Zuk v. Eastern PA Psychiatric Institute of the Medical College of PA
o   FACTS: Zuk’s copyright infringement action was dismissed, and the court sanctioned him and his attorney finding them jointly and severally liable to Defendant for attorneys fees. His attorney had never handled a copyright infringement suit before. 
o   RULE: Rule 11
o   HOLDING: Sanctions may be imposed against an attorney who fails to make a reasonable inquiry into the facts and law that govern a case.
o   REASONING: The principle purpose of imposing sanctions under 28 U.S.C.A. §1927 is the deterrence of intentional and unnecessary delay in the proceedings. Discovery is not intended as a fishing expedition. It doesn’t matter that it’s his first copyright case, because the standard is objective unreasonableness and his subjective lack of skill will not protect him from being sanctioned.
o   NOTES: How does a Rule 11 violation work procedurally- sanctions procedure?