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Civil Procedure I
University of Connecticut School of Law
Oquendo, Angel R.

Civil Procedure Outline – Prof. Oquendo – Fall 2012

Bird’s Eye View
Franz Kafka, Vor dem Gesetz, Der Prozeß / Franz Kafka, Before the Law, The Trial
Free Enterprise Fund and Beckstead and Watts, LLP, Petitioners v. Public Company Accounting Oversight Board, et al.
Procedural Rulemaking
Page 5 – Federal Rulemaking – The Rulemaking Process:  A Summary for the Bench and Bar, The Federal Rules of Practice and Procedure – basic overview of how federal rules come to be. 
Rules committee/”Standing committee”
Standing committee are composed of federal judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice.
How rules are amended: 7 step process (p. 8)
1.       Initial consideration by the advisory committee
2.       Publication and public comment
3.       Consideration of the Public comments and final approval by the advisory committee
4.       Approval by the Standing Committee
5.       Judicial conference approval
6.       Supreme court approval
7.       Congressional review
28 U.S.C. §§2071-2074 (United States) (1948) (As Amended, 1988)
§2071 (Rule-Making Power Generally) (p. 9)
Supreme Court and all course established by congress get to prescribe rules for the conduct of their business.
These rules must be prescribed only after giving public notice and opportunity for public comment, unless
Unless there is an immediate need for a rule, then it takes effect but the court must promptly give public notice and opportunity for comment after
District Courts can only make rules under this section
§2072 (Rules of Procedure and Evidence; Power to Prescribe) (p. 10)
Sup Court prescribes general rules of practice and procedure and rules of evidence for cases in US district courts and magistrates, and the court of appeals
The rules shall not abridge, enlarge or modify any substantive right. “All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
Court gets to override any legislative laws in these areas
Rules may define when appeal is final in a district court.
§2073 (Rules of Procedure and Evidence; Method of Prescribing) (p. 10)
Judicial Conference makes these rules
Can appoint committees to help them
Committees have members of the bench, the bar, and trial and appellate judges
Can have a standing committee on rules of practice, procedure and evidence.
Standing committee reviews committee suggestions and takes the good ones to the Judicial Conference.
Default set to meetings open to the public, unless there’s a reason to close meetings to the public
Suggested rules or changes should be in writing, with minority or separate views also included.
§2074 (Rules of Procedure and Evidence; Submission to Congress; Effective Date) (p. 10)
Supreme Court must give rules/changes to Congress no later than May 1 a rule proposal, which may not take effect earlier than December 1, unless provided otherwise by law
Any rule creating, abolishing, modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress
Doesn’t seem to include procedure or practice…
Order on the 1963 Amendments to the Federal Rules of Civil Procedure p. 11 – Black and Douglas dissent
Worry that the law will take effect and Congress doesn’t do anything
There needs to be congressional discussion
Justice have nothing to contribute… why send to us?
The rules are abridging the right
Justices don’t want to be involved
From the other outline:
Black and Douglas write to suggest that §2072 gives too much power to the Court to override legislation with rules that have potential implications on fundamental rights and the 7th amendment’s promise of a trial by jury.
Constitution requires congress and the president to pass legislation and approve of it, seems that these rules which can override laws without any legislative oversight may be too much power for the Court.
Summery judgment and directed verdict are just a couple ways that trial by jury are infringed upon, and they’re just rules.
If anyone should be reviewing the constitutionality of rules, it shouldn’t be the Supreme Court, it should be the Judicial Conference and the statute should be amended to reflect this.
This view thinks that these rules DO effect substantive rights so those should be looked at closely, rather than rubber stamped by congress
These rules are like enacting legislation, shouldn’t just pass without being voted on
Order on the 1993 Amendments to the Federal Rules of Civil Procedure p. 13 – White dissents and Scalia, Thomas, and Souter dissent in part
They don’t know anything about trial practice and it is ridiculous they are involved in this
Expertise has grown stale
Judicial conference should have the responsibility
Rule 11: Amendment goes too easy on lawyers and increases frivolous lawsuits
Other outline
Justices still have a problem with the fact that they’re supposed to rule in some sense on rules given to them by the Judicial Conference.
SC pretty much always transmit the rules, they feel like their role in the process is very minimal.
Again, the suggestion is made that Judicial Conference take the active role, not the SC
Another 2 reasons added why the SC should not have a roll in reviewing rules
Take too long with a growing caseload
The judges on the Judicial Conference are the ones regularly applying such rules, they are in a better position anyway
Not everyone will agree on rules, but the Judicial Conference is the best place for that discussion.
Basically the SC is saying they’ll defer to the judicial conference
Rule 11: (a proposed amendment possibly to the 1993 amendments, probably passed) (Scalia hates it, says it introduces an element into our system that is contrary to the adversarial system of trial, and promotes frivolous cases.)
Current rule 11 requires sanctions when its standards are violated (by a frivolous law suit)
Proposed change offers a 21 day “safe harbor”
Allows people to file “thoughtless, reckless, and harassing proceedings, since they have nothing to lose.
Also makes sanctions discretionary, when they still actually occur, instead of required.
Furthermore, the current rule 11 is working fine, and most judges like it.
Rule 1 (Scope and Purpose of Rules), Federal Rules of Civil Procedure (United States) (1938) (As Amended, 1993)
Amendment of Rule 1, Effective December 1, 2007
Rule 1 (Scope and Purpose), Federal Rules of Civil Procedure (United States) (1938) (As Amended, 2007)
“Just, speed, and inexpensive determination of every action and proceeding”
Used when don’t have a rule or need to interpret a rule. 
William Lewis SMITH  v. Wayne S.  BARRY, et al. – How to interpret rules when there is no clear answer
Appellate brief

Due Process Litigation and Class Action
Class Action Suits, Rule 23 in Federal Rules of Civil Procedure:
23(a): Four basic requirements for a class action that must be fulfilled. Make sure the representatives aren’t going to screw it up.
class is so numerous that Joinder of all members is impractical (too numerous)
Claims are common to the members of the class (commonality)
claims of the representatives are typical of the rest of the class (typicality)
Representatives will fairly represent the interests of the rest of the class. (adequacy)
A class representative must have the same interest and suffer the same injury as the class members (Sierra Club?)
23(b): 1/2/3 In addition to qualifying under (a), you have to classify the suit in one of these three action types
If this isn’t a class action, then it would be impossible for different courts and different levels making decisions all over the board. Need a class action to make the answer coherent.
Prevent inconsistent adjudication
Asking for an order of the court against a D, the actions of the D have effected the whole class and an order is needed on the behalf of everyone.
Good as class actions, but they don’t fit into the other two.
Must notify individual class members, and they can opt out of the class meaning they can sue for themselves at a later date.
Must notify individually everyone who can be reasonably found, and put something out there for the rest of them
23(c) Regulation of Notice Requirements
Strict requirements under 23(b)(3)
Individuals can opt out, must notify everyone who can be reasonably found and put something out into the stream of ideas/media/newspaper for everyone else
§  Imposition of the opt-out makes a statement in favor of class actions. The system is predicated towards making people opt-out
§  If something is brought under 23(b)(1) or (2) then you have to go to court and specifically opt out. People easily get stuck in that way, and can find that they’ve lost their right to sue
·         Δ sometimes wants a class action in 1 or 2, so as to prevent future claims
·         Judges/Lawyers in the judicial conference decide this because they want it for the benefit of efficiency and keep people opted in. Couldn’t really expect people to opt in. This facilitates class actions by making people in the class unless they go out of their way to opt out.
§  Opting in would be much more difficult logistically
·         Class must be certified
·         Sometimes D will want it to be a class action so they only have to pay out once
§  More depth on 23(b), (1), (2) or (3)
·         23(b)(1): Where separate actions by or against individual class members would risk establishing “incompatible standards of conduct for the party opposing the class”
o    23(b)(1)(A): or would, as a practical matter, be dispositive of the interests of nonparty class members, or substantially impair or impede their ability to protect their interests.
o    23(b)(1)(B): includes “limited fund” cases, where numerous persons make claims against a fund insufficient to satisfy all claims
§  Need a mechanism to ensure that future people to access the fund as treated as fairly and with equal benefit as those making the deal or immediately benefiting.
§  Under Ortiz v. Fibreboard the limited fund must be an amount that represent actually proven limits of the best possible deal for Πs, not a number decided by the Δs which may favor them.
·         23(b)(2): permits class actions for declaratory or injunctive relief where “the party opposing the class has acted or refused to act on grounds generally applicable to the class (like civil rights cases where a party is charged with unlawful, class-based discrimination)
·         23(b)(3): adds the ability to have actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be excluded
o    23(b)(3) is the convenience and efficiency class action
§  Used where class action may not be as clearly called for, but may be “convenient and desirable”
o    2 Further requirements of 23(b)(3)
§  Common Questions must predominate over any questions affecting only individual members (predominance)
·         This is more demanding than 23(a)’s commonality requirement in Amchem v. Windsor
§  Class resolution must be superior to any other available methods for the fair and efficient adjudication of the controversy. (superiority)
·         Must be manageable as well
o    23(b)(3) gives broader discretion, so there are additional considerations the judge should examine in their “close look”
§  1. the interests of the members of the class individually controlling the prosecution or defense of separate actions
§  2. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class
§  3. The desirability or undesirability of concentrating the litigation of the claims in the particular form
§  4. The difficulties likely to be encountered in the management of a class action.
·         Notice must be given under 23(b)(3)
o    Direct to member of the class the best notice practicable under the circumstances, INCLUDING individual notice to all members who can be identified through reasonable effort.
§  This identification is mandatory, cannot be relaxed due to high costs.
·         Settlement only class actions under 23(b)(3) has been accepted and used with success, but are concerns
o    Proposal to allow class actions expressly for settlement with more relaxed standards, but this has not yet become the current rule.
Jack R. GOLDBERG, Commissioner of Social Services of the City of New York, v. John KELLY et al. (p.
John Kelly brought suit against Jack Goldberg, Commissioner of Social Service of City of NY in District Court for the Southern District of New York. 
Certified as a class of residents of New York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State’s general Home Relief program.
Complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. 
At the time the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid. 
However, the State and city adopted procedures for notice and hearing after the suits were brought, and the plaintiffs challenged the constitutional adequacy of those procedures
After initial suit is brought, while suit is pending, Δ changes their rules to these for giving notice and providing hears (there were two choices available, A and B, and state department chooses B):
Must give notice to recipient of reasons for termination at least 7 days prior, and notify that they can have the decision reviewed by supervisor of case worker, to which they are allowed t

or a full administrative hearing before termination was completely final, but he goes straight for the courts.
At the courts, P wants a preliminary injunction to get him benefits while the case is pending.
He gets this at first. Has a pressing need to be financially supported
“suffer irreparable harm” if not granted the injunction
Retroactive payment will not do.
And you need a likelihood of winning on the merits, must convince a judge that you have a strong case.
Prelim injunction where
(1) suffer irreparable harm
(2) likelihood of winning on merits
Π has a constitutional claim and a substantive claim:
Constitutional claim, same as in the other cases where he challenges under due process the measures for terminating his benefits
Substantive claim for
Procedure: District Court held that this process abridged P’s right to procedural due process, and grants an injunction. D appeals and the Appellate court affirmed the injunction. SC will reverse.
Issue:  Does the termination of Social Security disability benefit payments without an evidentiary hearing, before the termination, violate due process 5th amendment?
Holding: No, this new policy does not violate procedural due process, or any of the statutes listed.
P could have received a full administrative review of the termination of his benefits, but this would have taken a long time (Jurisdiction question)
Usually the only jurisdiction is provided by law and states that administrative processes must be given the full chance to be used.
Not all these processes were completed here, no final hearing held.
Even though the court will usually defer to administrative process before claiming jurisdiction, this claim of entitlement is of the nature that deference to agency judgment is inappropriate.
So there is jurisdiction.
Also removal of benefits was a “final decision” necessary for the purpose of determining jurisdiction
This court has held that there must be some form of hearing before an individual is deprived of a property interest.
Fundamental requirement of due process to be heard at a meaningful time and in a meaningful manner.
Due Process is flexible, follows goals and circumstances rather than any set rule.
Termination is a process with many fact finding steps, and chances for review.
Also, if at any point the disability is reinstated, retroactive payments are made.
Given government and private interests in this disability benefit, the steps in place met the requirements of due process.
UNLIKE in Goldberg, those receiving disability are less likely to be on the very margin of subsistence. Less chance that the loss of 1 year’s disability would result in starving to death. (WOW, A YEAR!?!?!)
Less personal interest, so the government’s interest here is sufficient to sustain the policy.
If the person on disability does below subsistence levels from this, there are other programs that will kick in to help him/her.
Also, disability claims are more reviewable on paper, as statements from medical practitioners, than the types of claims and discussion taking place in Goldberg.
Less value for an evidentiary hearing.
Finally, as a matter of public policy, since the current process provides adequate recourse, it would be bad to incur the extra expense of pre-hearings in every case of termination.
At some point the costs are born by those who are deserving of benefits.
Mathews Test:
Personal interest
P has one and it is strong, but less than Goldbeg v. Kelly
Probability of a mistake
Less chance of mistake, since the evidence here is more straightforward and based on doctor notes. Less of a chance/need for an oral hearing
State Interest
Save money, encourage efficiency by having post-termination hearings
Whine about money, say that hearings take money away from
About the same interest as Goldberg v. Kelly
Disposition: Appellate Decision reversed.
Dissent (Brennan):
Appellate decision should be upheld, just because the suffering of someone on disability is less is no argument that they should not be given a pre-hearing before termination of benefits. This argument is speculative. Eldridge himself went through substantial financial difficulties as a result of this.
Dissent (Brennan, Marshall joining):
Eldridge must be afforded an evidentiary hearing of the type required for welfare beneficiaries
Majority contention that the halt in benefits would cause only a limited deprivation is speculative
People can lose homes and furniture to foreclosure, as happened to Eldridge
A worker denied disability might not necessarily get other public assistanc
Class Notes:
Mathews v. Eldrige
Challenges a lack of evidentiary hearing before his benefits are terminated
Says stare decisis should let him apply Goldberg v. Kelly, and get a pre-termination hearing.
Eldrige (the P), doesn’t want to go through all the administrative appellate levels, go to the court right after the first written response and denial after notification of termination.
1. Notice of termination
2. P’s response to notice saying he’s still disabled
3. denial of response by D
4. to the courts!
No due process violation here, and this case is different than Goldberg v. Kelly, so stare decisis does not apply in the way the lower courts applied it.
No due process violation
This information is more straightforward
Weaker interest by the individual, gov’t interest remains the same but individual interest goes down.
Mathews Test (3 elements, just “the test” here):
Personal interest