Civil Procedure I Outline

Chapter 1

The process

1. Jurisdiction for Claim
i. State v Federal
i. Federal question of federal law
1. All claims of constitutional rights violations
ii. Diversity

Cause of action

i. Hamdi – Habeus Corpus. 28 USC §2241
i. Typically brought in criminal cases, but Hamdi is civil prisoner
ii. Next Friend
i. Real party interest has a real claim
ii. Real party unable to file themselves
iii. prove sufficient connection to real party
1. Show alignment of interests w/ real party
2. (See also Gilmore – Chapter 3.1)

Complaint

i. Preliminary statement (optional, but can be helpful)
ii. Allegations
iii. Prayer for Relief (remedy)
i. Requests for preliminary injunctions à do NOT involve $$
1. Federal Rule 65
ii. Permanent Injunction
iii. Damages
1. Injunction claims w/out damages do NOT have right to jury
i. Injunction = common law court of Equity
1. No jury. Judge decides fact & law
ii. Monetary Damages = court of Law claim
1. Require Jury
iv. opposing party must be served

Answer
Counter-claims, Cross motions

i. Motions must be accompanied by memorandum explaining reasoning

Motion For Dismissal

i. No cause of action in the claim

Motion for Summary Judgment

i. If all facts are true, jury could not decide in favor of one party
ii. Beard v Banksà Secretary for Dept of Corrections filed for Sum Judgment against Banks claim that prohibiting newspapers etc violated 1st Amend

Discovery

i. Depositions, interrogatories
ii. Judge is only involved if there is a dispute

Arbitration, Mediation, Negotiation
Pre-Trial Conference

i. Judge looks over discovery materials
ii. MAY issue summary judgment or partial summary judgment (unusual)

Trial

i. Factual Disputes must be
i. Genuine à authentic dispute. Facts are true
ii. Material à facts must be relevant to the case

Preliminary Remedy

i. Hamdià Trial appointed counsel, ordered access. App à reversed order
ii. Cannot appeal preliminary remedy individually

Decision

i. Court order (above)
ii. If there is only a question of law – supreme court can decide
i. Do not need to remand, but might if want appellate court to consider

Appeal

i. Rumsfeld immediately appeals case
ii. Interlocutory Appeal
i. Appeal an issue before trial has concluded
1. issue typically must be material to the rest of the case
iii. Appellate court will not decide issues of fact, only issues of law
iv. RULE à Enemy Combatants may be lawfully imprisoned

Remand

i. On remand cases can go back to appellate court if no new evidence is needed or can be remanded to trial court for new evidence
ii. Gov’t presents Mobbs Declaration
i. B/c al quaeda is hostile, individuals associated w/them are enemy combatants. Imprisonment is legal.

Writ of certiorari

Rule making Procedure

Supreme Court has the power to make rules

i. Rules that affect rights of litigants = new legislation and should be approved by Congress
i. Black & Douglass à 1963 Amend to FRCP (1.9)
ii. Rule making should be left up to the Judicial Comittees
i. Black & Douglass à 1963 Amend to FRCP (1.9)
ii. Justice WHITE à1993 Amendments to Federal Rules (1.12)
1. Two reasons : Sup doesn’t have enough time and Judicial Conference & committees judges and lawyers are in a better position to make rules

Rules creating, abolishing or modifying evidentiary privilege must be approved by Congress

i. EP à privilege to present or not present something in court

Rules are made by:

i. Supreme Court
ii. Judicial Conference
iii. Standing Committee
iv. Advisory Committee
i. all are made up of judges and attorneys

Smith v Barry

i. Prisoner barry submitted letter stating he wished to appeal before court rendered a JNOV. Then submitted a brief as requested by court clerk for the appeal.
ii. Appellate – denied appeal. Supreme à filing IS adequate
iii. Scalia Concurred à liberal interpretation of rules, not formal

Chapter 2

Due Process Litigation, Due Process Testing, Access to Justice

5th Amendment – Due Process

i. No state deprive any person of life, liberty, or property, without due process of law

14th Amendment – (has identical clause)

i. enacted after slavery was abolished – probably to protect ex-slave’s rights

Mathews/Goldberg TEST for whether Due Process has been violated