Select Page

Civil Procedure I
University of California, Hastings School of Law
Price, Zachary

Civ Pro Fall 2013 Professor Price

(Joinder) Joinder-process for getting more parties in suit
(Settlement) – any point in time.

Adversary System: Judge as neutral arbitrator.
·         Fairness: Parties should be able to argue their own side
·         Limited bias on part of judge
·         Lawyers ability to prepare case. Important considering common law system; Judges won’t have knowledge of applicable precedent
·         Truth more important than who wins
·         Administrative: case takes longer, not run as efficiently
·         Unjust outcome
·         Confusion for jurors (due to constant back and forth arguing)

Judge can:
·         Call/Cross-examine witnesses
·         Present Evidence
·         Appoint amicus curiae
·         Raise additional issues
·         *However, in aggregate, judge’s power too great. Significant prejudice on one or more parties. Band’s Refuse: Case about garbage collection agreement. Judge abused discretion by calling witnesses without warning parties, presenting evidence, appointing amicus curiae, and raising additional issues. Represents striking down judicial activism to maintain adversary system

·         Pre-trial authority: Fed.R.Civ.P. Rule 16:

FRCP RULE 16 Pretrial Conferences; Scheduling; Management
Purposes: (1) speed (2) Control (3) Discouraging waste (4) preparation (5) facilitating settlement
-Judge must issue scheduling order including:
(1) limit time to join other parties (2) amend the pleadings (3) complete discovery (4) file motions
Attendance: Court allowed to require a party or its representative to be present or reasonably available to consider possible settlement
Sanctions: Permitted for (1) failure to appear, (2) does not participate in “good faith” (3) fails to obey a scheduling or other pretrial order.

Rationale: When a trial judge intervenes at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps, the case is disposed of by settlement or trial more efficiently and with less cost and delay than when the parties are left to their own devices.

Hierarchy of Federal Law
(1)  Constitution- Trumps all
i.                     Art. III. Standing- Constitutional constraint on federal courts
ii.                   Due Process 5th /14th Amendment (Mathews v. Eldridge/Conn. V. Doer): Test.
iii.                 Seventh Amendment: Right to jury trial
A.      Guarantees jury trials in certain specific contexts (legal matter, not equity)
B.      Rationale:
(1) Popular constraint on criminal punishment by decree from state
iv.                 Interpreting Constitution: 2x
A.      Originalism- Const. freezes in place. Not open to constant revision or new interpretation.
B.      Living Constitution- Const. should adapt to changing society

(2)  Statutes: Act of Congress
(3)  Rules à FRCP: Promulgated by Supreme Court
A.      Rules Enabling Act: authorizes Supreme Court to issue rules of federal procedure to create uniform rules. Supreme Court appointed an advisory committee to adopt the rules.



Judicial Conference

Standing Committee

Advisory Committees

i.                     Advisory Committees: takes public consideration to adopt rules
ii.                   Standing Committee: Oversees all procedural rules
iii.                 Judicial Conference: Chief Justice and representative group of judges representing the country
iv.                 Supreme Court: Decides to adopt rules
v.                   Congress: Has a time period to take affirmative action to stop rules from becoming amended
(4)  Cases: Interprets what the Constitution/statutes/rules mean

Settlement àANY TIME
Rule 16: Can’t coerce or command settlement.
(Kothe v. Smith) Judge warned sanctions would be imposed if settlement occurred after trial began. Defendant didn’t know plaintiff would consider settlement until trial began, but defendant was the only party that received sanctions. This was ruled an abuse of judge’s power. Rule 16 was designed to encourage pretrial settlement, it was not its purpose to impose settlement negotiations on unwilling litigants.)

Pros of Settlement:
(1)  Administrative relief from too many trials
(2)  Avoids risks of trial

Criticisms-Costs to society at large for settling a majority of cases:
(1) Confidentiality
(2) Public Accountability.
(3 ) No Precedent
(4) Lack of development for the law.
(5) Future implications on society.

Rule 16(a) Pretrial Conference
a.       Judge can order Attorneys, Unrepresented Parties AND Parties to appear at Pretrial Conference
Rule 16(c)
1.      Requires represented party to authorize attorney to have settlement power
2.      OR may authorize party to attend or be available by phone
Rule 16(f) SANCTIONS
a.       IF fails to appear at a scheduling or other pretrial conference
b.      Unprepared to participate OR DOES NOT participate in “Good Faith”
c.       Fails to obey a scheduling or other pretrial order

1.      Can a district judge order litigants, in addition to the attorneys to attend pre-trial conferences?
2.      YES. Even though language in Rule 16 only permits requiring Attorneys and non-represented parties, Rule 16 does not limit the judge’s power to require parties to attend
3.      Consistent with spirit of Rule 16 to hasten/quicken/efficient litigation
4.      Judge has authority outsi

to remain silent (Pleading the 5th): No person needs to be a witness against themselves
d.)   Right to due process: No person shall be deprived of life, liberty, or property w/o due process
e.)    Right to compensation for private property taken for public use

Amendment XIV.
Section 1.
a.)    All persons born in U.S. are citizens of the U.S. and the state where they reside
b.)   Privileges & Immunities: No state can make or enforce any law that restricts the privileges & Immunities of any U.S. citizen
c.)    Due Process: No state shall deprive any person of life, liberty, or property, w/o the due process of law
d.)   Equal protection: No state shall deprive any person within its jurisdiction the equal protection of the laws.
Section 5.
a.)    Congress has the power to enforce all provisions of XIV.

Pre-judgment Seizure: (Replevin, Garnishment, Attachment and Sequestration)
A.      Interim relief before the case goes to trial.
B.      Purpose to ensure the relief will be there for judgment.
C.      Different procedural rules b/w states.
D.     Ordinarily, only available for certain claims like commercial obligations or certain specific property.
E.      If correct claim asserted, property either physically seized or symbolically through an order directing certain disposition of the property.
F.      Temporary restraining orders and preliminary injunctions: allows court to order the parties to do certain acts or refrain from certain acts that would change the status quo.

Abuses: prejudgment seizure abuses led to restrictions on procedural rules.

3 part test for whether to allow or discontinue attachment until determination:
(1)  Private Interests: Interest of the beneficiary
(2)  Risk of error: If mistake happens, how much would it cost?
(3)  Government interest: Substantial burden on government?

Mathews v. Eldridge: Social Security benefits case
i.                     3 part test failed:
ii.                   Private interests for disability insurance not as great as for welfare. People on welfare need the money to survive.
iii.                 Too great a burden if every disability challenge went to court.
iv.                 Too small financial loss/risk of error