BASIC PRINCIPLES: Scope and Purpose of Federal Rules – Due Process, Rules 1 and 2.
I. Procedural values
A. Accuracy
1. Neutral (lack of bias); Precise (in terms of probability that random error will occur in any given case and the expected magnitude of that error)
B. Fairness/Autonomy
1. Trust; Standing; Neutrality (Honesty, unbiased treatment, consistency, factual decision-making)
C. Cost/Efficiency: Financial and Delay
II. Due Process
A. Essential Elements
1. Notice
2. Hearing in a Meaningful Manner and Time (Opportunity to be heard)
a. Value
i. Reduce arbitrary government action; “Fairness” to person whose property has been seized (Abstract/Dignatory); Opportunity for Reasons to justify government action: Find Truth: Accuracy; Protect right of individuals to be free from government interference in their private liberty and property ; Efficiency, Individualism, autonomy, capitalism: laissez faire; Public Accountability;
b. Function
i. Tests the facts of P’s claim; Avoiding error in fact and law; Substantively unfair is a unfair result, not process: has to do with mistake in law; Mistaken means mistake in fact ; Find Truth
c. Form
i. See Chart on Handout #5
ii. Length and severity of deprivation; Relative weight of property interest; Showing of immediate danger; Confrontation (Get to cross examine witness); Presence of Attorney; Oral (stuff doesn’t have to be written): appear and speak up; No other sources of information: reasons have to be in the statement of reasons; Get written result
3. Neutral Decisionmaker
B. Exceptions (II.27)
1. Important Government Interest
2. Need for speed
3. Strict Controls and Standards
C. Provisional Remedies for P
1. Definition: judicial order, obtained at an early stage of litigation, designed to stabilize situation or prevent harm pending final disposition of the case or to provide security to P so that if she succeeds in obtaining judgment she will be able to enforce it effectively. PROVISION b/c can be reversed or retained later.
2. Temporary Restraining Orders (TRO)
a. May be issued ex parte (one side only) if immediate relief necessary
b. Bond to indemnify D against loss or expense required
i. Bond = contractual undertaking by or on behalf of person seeking remedy to make good any damages caused by mistaken issuance of remedy
c. At hearing (where D is present) P can request Preliminary Injunction: P must show:
i. Need to maintain the status quo pending outcome of litigation
ii. Likelihood he will prevail
iii. That P will be harmed more if no injunction than D would be if there is one
D. Misc.
1. Does not depend on what your chances of winning are. There can still be no seizure of property before a hearing
E. èÖèFuentes v. Shevin (II.19)
1. Facts: Firestone got police to seize Fuentes’ fridge and stove after she stopped making payments
2. Rule: State acts in some way…To deprive a person of property…Without due process…
3. Outcome: Person must have a hearing before a state agent seizes property
4. Florida Statute (II-20): Any person whose goods or chattels are wrongfully detained by any other person…may have a writ of replevin (provisional remedy) to recover them…
a. Court holds that this is unconstitutional because no seizure can happen before a trial. Fuentes has the right to appear and speak up and defend herself before her property is seized.
b. Goldberg precedent: right to be heard before deprivation: constitution requires hearing before prejudgment wage garnishment and before termination of certain welfare benefits: BUT WELFARE IS A NECESSARY ITEM (a stove isn’t)
F. èÖèHamdi v. Rumsfeld (Handout #4)
1. (8) WE HOLD THAT Citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to [be heard and] rebut the Government’s factual assertions before a neutral decisionmaker.
2. Habeus corpus: file claim against the person holding you
3. Presumption that if government comes through with evidence, the burden shifts to Hamdi to prove with more persuasive proof that he’s not an enemy combatant (ONUS is on him)
4. O’Connor implies that hearsay would be admissible at trial
G. Matthews v. Elderidge test
1. Importance of private interest (Nature, gravity, longevity of government intervention) vs.
a. Hamdi has lost rights to physical liberty
2. Government’s interest
a. Nature and context of imprisonment (hold Hamdi so that he won’t go back and fight with enemy)
b. Burdens of More Process (we can’t be calling people who are at war to come back and testify, and if we disclose the intelligence about Hamdi, we’re giving up secrets about Northern Alliance and how we captured him)
3. Risk of Error with reduced process and Probably value of more Process
a. If all we do is look at Mobbs declaration, what is magnitude of risk of error? Balance that against the value of taking more process with respect to reducing error
H. èÖèLassiter v. Dep’t Social Services (II.80)
1. ISSUE: Does N.C. have to provide counsel for indigent people when seeking to terminate parental rights?
2. Majority decision: (II.87) No. It depends on case-by-case decisions and under discretion of trial court. Here there are no complicated legal issues. Creates presumption that we do not apply counsel unless incarceration is at stake
a. Didn’t want to interfere with states rights (Class #6)
3. Dissent: The due process values will be compromised if no lawyer is present. Elderidge test logically flows to decide that legal representation should always be present. There ARE complex legal issues.
a. Lots of problems including biased judge, lack of lawyer (Class #6)
4. Hard for indigent people to get a lawyer (II.60-67)
III. Rule 1. Scope and Purpose of Rules
A. Govern procedure in US district courts
B. Values: to secure the just, speedy, and inexpensive determination of every action.
IV. Rule 2. One Form of Action: known as civil action
FILING OF INITIAL PLEADINGS
I. Pleadings and Motions Defined: Rule 3, 7
A. Rule 3. Commencement of Action: begins with filing of complaint
B. Rule 7. Pleadings allowed; forms of motions
1. 7(a): 2 kinds of pleadings allowed: COMPLAINT and ANSWER
a. REPLY (answer to an answer) allowed when answer contains a COUNTERCLAIM, or by ORDER of the court
II. Jurisdiction [basic concepts only – not covered in exam]
A. Personal Jurisdiction – Where can defendant be sued?
1. Long-arm statute: D’s relationship to geographic territory where court sits
a. Domicile, Consent, Physical Presence, Minimum contacts of a non-resident
2. Due Process Clause (art. XI)
a. Precedence over state law, so states have to obey federal procedures of due process
B. Subject Matter Jurisdiction
1. State Court – general subject matter jurisdiction
2. Federal Court – (art III, sec 2) limited subject matter jurisdiction
a. Federal question: constitutional or US law
b. Diversity of citizenship: parties from different states
C. Venue
III. General Pleading: Draft Complaint
A. Short and plain statement of jurisdiction and the claim
1. Rule 8(a): General rules of Pleading; Claim for relief
a. statement of grounds of jurisdiction (Rule 8(a)(1))
b. statement of claim showing P is entitled to relief (allegations) (Rule 8(a)(2))
i. Plaintiffs can allege conclusions and facts: no distinction between conclusions and facts
ii. Legal theory not required
iii. Can’t claim simply a conclusory statement; need some facts
c. Relief sought (Rule 8(a)(3))
B. Value of putting more into pleading than required (Buffalo Creek)
1. New theory of mental suffering: get judge to understanding that mental suffering took place
2. Gives voice to plaintiff
3. For PR b/c public and press has access to it
4. To educate court in terms of changing the law and help Hall see that the case involved tremendous suffering; this might have influenced to be more generous
C. Rule 8(e): Concise and Direct; Consistency
1. Rule 8(e)(1): Pleading must be simple, concise and direct
2. Rule 8(e)(2): Pleading in the alternative; Party may plead two or more statements that may seem to contradict each other in one count or in separate counts (in good faith only; not if they know which one is true)
a. The insufficiency of one doesn’t make the other insufficient; facts alleged in the pleading can’t be used against you
b. èÖèMcCormick v. Kopmann (V.82)
i. Summary: P’s husband died in car accident. She didn’t know w
law, or a nonfrivolous argument for extension, modification, or reversal of existing
C. Rule 11(b)(3): facts alleged have support
1. Plaintiff must have some basis in fact, not just in belief or speculation
2. In Buffalo Creek, Stern’s speculation about damages for mental suffering passes Rule 11 because there is no fact resource he can turn to
3. In McCormick, there is factual evidence that supports both opposing counts so she passes Rule 11
D. Rule 11(b)(4): if you’re D, denials are warranted or reasonably based on lack of information or belief
E. Bad faith is not a requirement for sanctions
III. Rule 11(c): Sanctions for unethical practices: you don’t need much to escape sanction, but you need something
A. By Motion: Rule 11(c)(1)(A): No time period in Rule 11; can come before or after motion to dismiss; can be initiated by Rule 11 motion by D
1. 21-day Safe Harbor: P can withdraw or amend his complaint within 21 days (court won’t see it before then) after receiving notice of D’s action (e.g. to dismiss)
B. By Court Order: Rule 11(c)(1)(B) Also Rule 11 can come by court’s initiative where it enters order describing conduct and directs person who’s violated rule an order to show cause
1. Up to court’s discretion: Court MAY but doesn’t have to impose a sanction
C. 11c(2) says sanction “shall” be limited enough to deter (that means it must be limited)
1. Rule 11 is meant to deter, not compensate or punish, and sanctions are usually not monetary
a. 1983 amendment moved from private to public interest
D. Sanction CANNOT be given to Rule 11(b)(2) violations because this is a legal mistake or for sanctions given by court’s order unless order to show cause
E. Rule 11(c)(3) says court must describe conduct and explain basis for sanction
F. èÖèZuk v. Eastern Pennsylvania Psychiatric Institute (V.92)
1. Summary: Zuk and attorney (Lipman) found joint and severally liable. Zuk settled and paid 7K. Lipman left with 8K. Court said Lipman was not liable under Sec 1927 (bad faith/notice) b/c he didn’t assert frivolous procedural motions that prolong and delay and harass opponent.
2. Judgment: Remanded the whole thing b/c judge applied two sources (1927 and 11), and only gave one amount: Didn’t say what percent of sanctions attributed to each rule
a. This is a violation of Rule 11(c)(2 & 3): it was error to invoke without comment a very severe penalty: possible abuse of discretion
3. Rule 11 violations by Zuk and Lipman:
a. Factual inquiry: 11(b)(3): no evidentiary support: didn’t look into issue of whether EPPI was still renting out films in library; and P didn’t allege this (Statute of Lim is 3 years)
b. Legal inquiry: 11(b)(2): didn’t make a good faith inquiry into law (copyright of book that mentions films doesn’t copyright films)
IV. Rule 11 does not apply to discovery (Rule 11(d))
V. Problems with Rule 11
A. Has affected Ps more than Ds
B. Problems for parties that want to assert new legal contentions or who need discovery from other persons for evidence of party’s belief
C. Nonmonetary sanctions are not used enough
D. Little incentive for a party to abandon positions after determining they’re not legally or factually supported
E. Produced attorney-client conflicts
VI. History of Rule 11
A. Past: Well grounded in fact, Good faith argument, Shall (MUST) impose sanction
B. 1993 Amendment: Evidentiary support or
