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Civil Procedure I
University of Connecticut School of Law
Lahav, Alexandra D.

Civil Procedure Outline Lahav Spring 2012

1)      Complaint
2)      12b Motions (defenses)
3)      Answer
4)      Motions for Voluntary or Involuntary Dismissal
5)      Rule 16 scheduling conference and order
6)      Discovery
7)      Motions to Amend
8)      Settlement Discussion
9)      Motion for Summary Judgment
10)   Rule 16 pretrial conference
11)   Trial
12)   Motions for directed verdict/judgment as a matter of law
13)   Verdict
14)   Entry of Judgment
15)   Motions for JNOV (Judgment notwithstanding the verdict/Judgment as a matter of law)
16)   Motions for a New Trial
17)   Appeals
18)   Motions to Vacate Judgment
19)   Execution of judgment

I.   Access to Lawyers & the Legal System

Boddie v. Connecticut (SC, 1971) – Poor people can't pay court fees to get a divorce. Due process prohibits a state from denying, solely because of inability to pay, access to its courts to individuals on issues where the courts are the only avenue to be heard (must have opportunity to be heard). Marriage's fundamental role in US.

Lassiter v. Dept of Social Services (SC 1981) – Poor woman can't afford lawyer when Social Services moves to terminate her parental rights. No Constitutional right to counsel unless the indigent litigant, if he loses, may be deprived of his physical liberty (criminal cases involving potential jail time). Uses Matthews Test (See Matthews below)

Turner v. Rogers (SC 2011) – South Carolina allows incarceration for contempt of civil court. Turner failed to pay child support and didn't have lawyer during his civil contempt trial. Due Process doesn't require counsel at civil contempt proceedings that might lead to incarceration if there are other procedural safeguards. Turner didn't have safeguards.
Substitute Procedural Safeguards:
1)      Notice to defendant that his “ability to pay” is a critical issue in the contempt proceeding;
2)      The use of a form (or the equivalent) to elicit relevant financial information;
3)      an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and
4)      an express finding by the court that the defendant has the ability to pay

Due Process


Goldberg v. Kelly (SC 1970) – Welfare cut off before hearing. Due Process requires a welfare recipient be afforded an evidentiary hearing prior to termination of benefits. Ending welfare would deprive eligible recipient of means to live while she waits, situation becomes desperate. Needs of recipient, risk of erroneous decision outweigh gov interest.
Goldberg Test: human dignity, private interest, government interest

Matthews v. Eldridge (SC 1976) – Eldridge's SS disability cut off before hearing. Due Process does not require recipient of SS Disability be afforded an opportunity for an evidentiary hearing prior to termination of benefits.
Matthews Test (See Lassiter above) –  Court now looks at state interest in context of economic burden on state takes out language on human dignity.
3 Factors in Deciding what Due Process Requires (Matthews Test):
1)      Private Interests at Stake
2)      Risk of Erroneous Deprivation of Such Interests through the Procedures Used and the Probative Value of Additional or Substitute Procedural Safeguards; and
3)      The Government's Interest, including the Function Involved and the Fiscal and Administrative Burdens that the Additional or Substitute Procedural Requirement Would Entail


FRCP 4a,b,c: Summons (Contents & Amendments, Issuance, Service)

Jones v. Flowers (SC 2006) – Commissioner of Lands sends 2 letters to guy saying his property taxes are delinquent and will be subject to sale if not paid. Letters are all sent back to Commissioner marked “unclaimed.” Due process requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Here guy was no better off than if govt hasn't sent the letters. Govt could have taken reasonable steps to further try to reach him.


Hamdi v. Rumsfeld PLURALITY (SC 2004) – US citizen detainee wants ability to challenge his status as enemy combatant. 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 o rebut the Government's factual assertions before a neutral decision maker. Court applies Matthews test. Constitution wouldn't be offended even if gov's evidence was presumed true as long as there was an opportunity for rebuttal.

Remedial Powers


FRCP 64: Seizing a Person or Property (Arrest, Attachment, Garnishment, Replevin, Sequestration)
FRCP 65: Injunctions and Restraining Orders (Preliminary Injunction, Temporary Restraining Order, Security)

Attachment or Lien – plaintiff places lien on real estate of defendant
Preliminary Injunction – enjoins the defendant from transferring the real estate; plaintiff must establish he is likely to succeed on the merits and is likely to suffer irreparable harm in the absence of preliminary relief
Lis Pendens – notice in the registry of deeds warning potential buyers that there is pending litigation that might prevent them from obtaining unburdened title to the property
Sequestration – removes personal property from defendant's possession or cuts off defendant's access to funds or wages
Receiver – official designated by the court to hold and manager property because it might be endangered by fraud or mismanagement (by plaintiff during the proceedings)

US v. New York Times (SDNY 1971) – Gov sues to enjoin (TRO) NY Times from further disclosing materials obtained from 2 classified Vietnam War studies. To sustain a preliminary injunction, the Government would have to establish not only irreparable injury, but also the probability of success in the litigation itself. Gov has a right to injunctive relief against a newspaper that is about to publish information or documents absolutely vital to current national security. But that isn't the case here. Docs don't disclose the types of info specifically prohibited by Congress. Here, no irreparable injury nor reasonable likelihood of Government success. Free press is not absolute, but vital. Preliminary injunction denied but TRO remains in place until 2nd circuit hears the case.

To get a preliminary injunction (same factors to get TRO in 2nd Circuit):
Likelihood of success on the merits
Irreparable injury/harm if not granted
Balance of equities favors moving party
Injunction is in public interest

To get a Temporary Restraining Order (Rule 65 b):
Can be issued without written or oral notice to the adverse party ONLY IF:
Specific facts in an affidavit or verified complaint clearly show that immediate irreparable injury, loss, or damage will result to the movant before the adversary party can be heard in opposition; and
the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required
TROs can be obtained within hours and are a faster method of getting an order than a preliminary injunction. If movant party makes an effort to notify the adverse party, but the adverse party cannot be reached or cannot attend the hearing, the hearing may still go forward without the other party.
TROs can be obtained for up to 14 days, but doesn't have to be that long.
Adverse party can file a motion to dissolve on 2 days notice.

Adverse party can also get a security from the movant. Sometimes the court may require a security before issuing any TRO or preliminary injunction. Security is in the amount the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully restrained


Walgreen Co. v. Sara Creek Property Co. (7th Cir. 1992) – Walgreen seeks injunction when another location in the mall is leased to a pharmacy in violation of exclusivity contract. Where damages would be a costly and inadequate remedy, injunctive relief is appropriate. Determining type of remedies require balancing of cost and benefits of options. Here, with 10 years left on lease, damages too hard to determine. Parties can negotiate settlement after injunction granted.

To Get a Final Injunction:
1)      Must actually succeed on the merits of the case
2)      Burden is to show that damages are inadequate and the denial of the injunction would cause irreparable harm
3)      Social cost of spending time and money on figuring out damages isn't worth it, issuing the permanent injunction is better and in the meantime, the parties can negotiate privately for a settlement


FRCP 68: Offer of Judgment (Making an Offer, Accepted Offer, Unaccepted Offer, Offer After Liability is Determined, Paying Costs After an Unaccepted Offer)
a) Defendant may serve plaintiff an offer at least 14 days before the date of trial. If accepted and the offer and notice of acceptance are filed the clerk must enter judgment
d) if the final judgment the plaintiff obtains is not more favorable than the unaccepted offer, he must pay the costs incurred after the offer was made

FRCP 11: Signing pleadings, Motions, and Other Papers, Representations to the Court, Sanctions
A court may order payment of some or all of the reasonable attorneys' fees and other expenses as a sanction for filing a pleading or motion without adequate inquiry, unwarranted by existing law or fact, or based on a frivolous argument for new law See DuPont on p. 8

Marek v. Chesny (SC, 1985) – Guy turns down settlement offer, at trial court awards him less than offer. He was then awarded costs and fees before the offer, but not after per FRCP 68.  Attorney fees incurred by a plaintiff subsequent to an offer of settlement will not be paid when the plaintiff recovers less than the offer.
Section 1988 lists attorneys fees as part of cos

   By omission, you lose the right to bring other 12b defenses that you did not include in the original answer
·         Motion for Judgment on the Pleadings: upon considering all of the pleadings, it is clear that either the plaintiff or defendant must win
c)       Answers
·         4 types of materials in the answer: 1) admissions and denials to the averments in the plaintiff's complaint; 2) 12b defenses; 3) affirmative defenses; 4) counterclaims and cross-claims
·         Defense might want to implead a third party or otherwise seek to add parties
d)      Admissions and Denials
·         Rule 8b requires the admission or denial of each averment. Pleader can deny specific allegations, whole paragraphs of the complaint, or the entire complaint
·         When a responsive pleading is required, allegations not denied will be deemed admitted
·         Penalties exist for denying an entire group of averments when in fact the pleader denies only a portion and could admit the remainder (see Zielinski v. Philadelphia Piers, Inc.)
e)      Affirmative Defenses
·         Defendant is saying: even if you prove your cause of action, I still win because of another rule or an exception
·         Rule 8c lists nineteen affirmative defenses
·         Though some circuit courts have concluded a defendant does not waive an affirmative defense by failing to raise it in the answer, it is safer to include all potential affirmative defenses in the answer

Defenses 12(b2-b5) are waived by omitting it from a motion or failing to make it by motion or including it in a responsive pleading or in an amendment. This is because 2-5 are things defendant would know immediately upon being served, but 6 and 7 might come along later in the process.


FRCP 18a: Joinder of Claims (In General): A party asserting a claim, counterclaim, crossclaim, or third party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.
You can sue someone for breach of contract, slander, fraud and negligence, even if they happened on different dates and are not connected in any way.

FRCP 20: Permissive Joinder of Parties
a) Persons may join an action as a plaintiff if they assert any right to relief arising out of the same occurrence.
Persons may be joined in one action as defendants if any relief is asserted against them jointly
b) The court may issue orders, including ordering separate trials, to protect a party against embarrassment, delay expense or prejudice

If there's a counterclaim, is it permissive or mandatory? Only way you'll find out for sure is at the second proceeding when it's already too late if you're wrong.

Kedra v. City of Philadelphia (EDPA 1978) – Kendra and her children sue Philly for a series of incidents of police brutality occurring over 15 months. The fact that certain claims and parties relevant thereto span a lengthy period of time will not, by itself, prevent joinder. As long as a claim or party is “reasonably related” to the main claim, joinder is appropriate. Broadest scope that is still fair is encouraged to facilitate efficiency. Rule 20 has been interpreted to permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding.


FRCP 13a: Counterclaim and Crossclaim (Compulsory Counterclaim – must be brought right away or it's waived)
FRCP 14b: Crossclaim and Counterclaim (Permissive Counterclaim – optional to bring up, can bring it later)

Crossclaims can be brought later, don't waive right to claim if you don't bring it up at first.

Counterclaim: defendant files a claim against plaintiff
If you have a claim against the other guy that arises out of the same transaction or occurrence as the claim that's being brought, you must bring it as a counterclaim, or you can't bring it up later.
Exceptions to this rule: when the action was commenced, the claim was the subject of another pending action; or the opposing party sued on its claim by attachment