Civil Procedure LLM O’Connell Summer 2015
I. Overview
1. Litigation Process
Selection of attorneyè Selection of court with jurisdiction (PJ, SMJ, Venue)è File a complaint (jurisdiction, claim for relief, demand for relief) è Affirmative defenses in Rule 8, answer or Rule 12 Motion, if denied, answer, Rule 12(b) defenses è Discovery (Initial discovery + Requested discovery) è 50(a) Motion for a judgment as a matter of law or 56 Motion for Summary Judgment è Pre-trial Conference, Jury Trial and Verdict (Selection of Juror) è 50(a) Motion motion for a judgment as a matter of law, and conditionally a 59 Motion è If denied, entry of judgment è Post trial procedure: claim preclusion and issue preclusion
Settlement can happen throughout the whole process.
2. Court System
Federal District Court è Circuit Court è Supreme Court
State Trial Court è State Appellate Court è State Supreme Court
California Supreme Court è California Appellate Court è?
3. Legal Source
Federal Rules of Civil Procedure
Constitution
Case Law
4. Rule change process
Advisory Committee on Rules, proposal of law, take comments, finalize proposalè send the proposal to Standing Committee on Rules (Judges, Lawyers, Scholars), accept, reject, or modifyè send to judicial conference set up by congress (all judges), modify, reject or accept è send to Supreme Court, forward or not forward to Congress è Congress passes the law and take effect as of Dec. 2015 or Congress votes down the proposal
5. Flow Chart
Complaint è Rule 12 Motion/ Rule 56 Motion/ Answer è Motion denied, Answer (and reply if permitted) è Discovery è 56 Motion è Pre-trial Conference (settlement) è Jury Trial è 50 (b) and 59 Motion è Entry of Judgment è Preclusion
Selection of court (territorial jurisdiction, subject matter jurisdiction, venue) è compliantè filing compliant with the courtè court clerk signs and puts the court’s seal on the summons submitted by Pè P serves the summons and complaint to the defendants to notify them of the lawsuit (personal service or by first class mail)è Defendant’s response, either a motion to dismiss, or an Answer, and serve it upon P; or if the D fails to respond in due time, P would instruct the clerk of the court to note that D is in default and apply to the court for a default judgment; è Examining the complaints, whether the complaint describes a violation of law entitling P to recover damages; Motion to defend have to be filed in the first placeè
6. Very useful book for civil procedure:
Wright & Miller: federal practices procedure
Part I: 2hr, 15 short answer questions: (yes or no, why) 8 min per question
Part II: 30 min essay
Part III: 30 min essay
II. Due Process
1. Sources
5th and 14th Amendments è constitutional by nature
2. Values:
2.1 Primary value: Accuracy eg. car accident and cause 10,000 damages. If 15000 damages are awarded each time, it causes bias; if sometimes 15000 and sometimes 5000, then it causes precision question.
2.2 Alternative values: fairness, Dignity, Participation, but not DP’s concern
2.3 Risk of erroneous deprivation of private interests by official action through procedures used and probable value, if any, of additional procedural safeguards
v.
Government’s interest, including fiscal and administrative burdens that the additional procedures would entail
(1) Goldberg v. Kelly, in person hearing necessary
(2) Mathews v. Eldridge, 1976: not necessary
Termination of Social Security Disability Benefits without prior hearing è Supreme Court: No prior hearing is required under DPC. Distinguished from Goldenberg case. Termination does not depend on poorness so will not affect survival; depend on disability and medical report suffices; written submission was impractical in Goldenberg due to the low education level, while the detailed SSD questionnaire is sufficient.
(3) Van Harker v. City of Chicago: public official not need to show up in court. Private interests low and government interests high
3. Scope:
3.1 Apply to civil, criminal and administrative Process
3.2 Federal actions (5th Amendment) or State or local actions (14th Amendment) depriving a citizen’s life, property, liberty
3.3 US citizens + US territories
3.4 Property: entitlement, Goldberg v. Kelly; Mat
981)
(i) State to provide attorney in criminal cases to poor people
(ii) Background case: L kills a neighbor and is deprived of parenting right. Does the state undertake the attorney fee incurred by L?
(iii) Ruling: No as deprivation of parenting right is not governed by DP.
(iv) What to do? L can obtain under another statute
III. Pleadings (Rule 7, Rule 8)
Note: litigation documents comprise of pleadings + motions + other documents (eg. discovery materials; depositions)
Pleadings frame the dispute under Rule 7. Allegations must be concise, simple and direct.
1. Types
1.1 Complaint/ Claim for Relief/ Counter claim, cross claim, third party claim
n Short and plain statement of the grounds for the court’s jurisdiction;
n Short and plain statement of the claim showing that the Pleader is entitled to relief; è failure will result 12(b)(6) Motion;
n A demand for relief sought;
1.2 Answer (Defenses, counter claims, cross claims)
n First pleading responding to a compliant, may raise defenses, counter claim and cross claims
n Paragraph by paragraph: admit, deny or lack of information
n General denial v. specific denial
n Forget to address allegation è admission; lack of information è deny
n Have to raise affirmative defenses 8(c) in the answer, the only chance to raise Rule 8 Affirmative Defense
n Have to raise any counter claims, the only chance to raise related issues; unrelated issues may be raised or left to another action
n Want to raise 12 defenses, if not waived
1.3 A reply to an answer, if permitted by court
1.4 Notice Pleading v. Code Pleading
2. Case:
Access Now v. Southwest Airline,
