Civil Procedure I Outline

FALL OUTLINE

1) Adversarial System Generally

Rule 16(a) – court may order parties to conference – for efficiency
Rule 16(b) – must order scheduling order – required: time for discovery completion, amend pleadings, complete motions – permitted: modify extent of discovery
Rule 16(c) – party must send attorney authorized to make stipulations and admissions. At conference court can simplify issues, amend pleadings, identify witnesses, order presentation of evidence as basis for JMOL 50(a), facilitate efficiency
Rule 16(d) – Following conference court orders action based on conference
Rule 16(e) – Final pretrial conference – must include one attorney – order facilitates admission of evidence
Rule 16(f) – sanctions – if attorney doesn’t appear or doesn’t participate in good faith or fails to obey an order. May impose fees for noncompliance with Rule 16 – Rule 37 standards for sanctions

a) Bands Refuse – Judge oversteps bounds. Activist judge wants to use trial to investigate fraud in civil bidding process. Appellate court holds courts must not only be impartial but give appearance of impartiality.
b) Judges intended to be impartial arbiters of parties
i) versus German judge – director of proceedings
c) Rule 16 expands role of judge – conferences

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ii) Judge may direct conference for purposes of:
(1) simplifying issues
(2) necessity of amendments to pleadings
(3) obtain admissions
(4) limitation of experts
(5) aid action
iii) purpose to avoid surprise at trial
iv) improves possibility of settlement
v) Kothe v. Smith – Trial judge attempts to impose sanctions on party for not settling. App court rules this an abuse of power. Courts cannot force involuntary compromise.
(a) fair to change evaluation of case after testimony heard
(2) “good faith participation” in settlement conferences required?
vi) Parties have power of subpoena – litigants may call witnesses
2) Remedies
a) Prejudgment Seizure

Rule 64 – makes attachment, garnishment, replevin, sequestration available to Court

i) Assures property is available if plaintiff prevails
ii) Problem – 14th amendment due process concern
iii) Fuentes v. Shevin – Whether items to be repossessed are necessary or not, it is always a violation of due process (14th Amd.) to seize property without a pre-seizure hearing. Allows postponing notice for “extraordinary situations” 1) gov’t or public interest, 2) special need for prompt action, 3)government official seizure
iv) Mitchell v. W.T. Grant – Holds a pre-hearing seizure constitutional. Distinguishes from Fuentes in that requires factual support, review by a judge, bond, damages for wrongful taking
v) North Georgia Finishing Inc. v. Di-Chem – Court holds that seizure using affidavit making only allegations but not with facts and review by judge is necessary for due process. This was issued by clerk.
vi) Connecticut v. Doehr – applies balancing test – defendant’s interest is damaged credit – risk of error requires objective likelihood of success whereas here there is only good faith belief – plaintiff had no interest in that which was attached. Current rule:
(1) Balancing test for review of seizure without notice – Does it violate due process?:
(a) Defendant’s interest – how much does deprivation hurt defendant until heard
(i) e.g. Sniadach – replevin of wages without hearing and no money for groceries
(ii) examine level of intrusion in day-to-day life
1. how much will defendant suffer?
2. Is there a bond?
(b) Risk of error – whether statutory scheme requires affidavit and documentary interest
(i) Does judge make determination?
(ii) Do facts or conclusions support?
(c) Plaintiff’s interest – does plaintiff have an interest in the property that would be seriously harmed while waiting
(i) is the property movable?
(ii) is there a threat of distruction?
b) Preliminary Injunction

Rule 65(a) – Preliminary Injunction – may issue only on notice to adverse party
Rule 65(b) – Temporary Restraining Order – (1)(a)may only order without notice if immediate and irreparable injury, loss, or damage will result to movant before adverse party can be heard, (b) or if movant’s attorney certifies in writing efforts to give notice and why should not be required. (3)If issued without notice must expidite hearing.
Rule 65(c) – may only order preliminary injunction or if movant gives security for seizure

i) Notice to other side is necessary
ii) Judge must balance following factors:
(1) Plaintiff’s probability of success
(2) Is harm to plaintiff serious and imminent?
(3) Balance of harms – P to D
(4) Public interest
c) Damages
i) Compensatory
(1) elements:
(a) out-of-pocket costs
(b) emotional distress
(c) lost earnings
(d) lost property
(2) power of judge
(a) sufficiency of evidence
(b) limit emotional appeals
(c) power of judge via instructions to tell jury what to do
(d) judge has power to conclude verdict is too high
(e) let judgment stand provided pltf takes less money (remittitur)
ii) Punitive damages
(1) not limited to compensation
(2) outrageous conduct
(3) measured by wealth, what is necessary to punish
iii) Carey v. Piphus – In the absence of proof of actual damages, only allowed to recover nominal damages. Pltfs claim that any violation of constitutional rights is an injury. Court rules must actually show deprivation caused injury, or nominal damages only. Punitive damages require an intent element, which was lacking.
iv) Enforcement of money judgment
(1) not in contempt if don’t pay money judgment – can be gained through liens, garnishments
d) Equitable Remedies

Rule 65(d) – every injunction must include: reasons why issued, specific terms, describe the extent without referring to other document, and all persons bound

i) Order for defendant to cease or begin an action
ii) Only available with irreparable harm
iii) Smith v. Western Electric – Court holds that the claims in the complaint, taken as true, is sufficient to show that exposure to smoke in the workplace causes damage that is irreparable – money damages can’t compensate. Remands for consideration.
iv) Test for injunction:
(1) has plaintiff succeeded on merits?
(2) Whether there is an adequate remedy at law (do damages compensate)?
(3) whether plaintiff risks imminent irreparable harm?
(4) whether balance of hardships weighs against issuance of an injunction
(5) whether injunction would serve public interest
(6) can court practically administer injunction
v) Enforcement – more enforceable than damages – violation can be treated as:
(1) criminal contempt
(2) coercive civil contempt (jail until compliance, or fine daily until compli