Civil Procedure II- Shipley Spring 2014 Outline
I. Process of Litigation
A. Incentives to Litigate
1. The United States’ system is unique- lawyers play much more significant role than in any other country
2. Civil litigation has increased over the last few decades as the population has increased
3. Most civil litigation occurs in state court because of the federal court limited jurisdiction
4. Most civil litigation is resolved by default judgment
5. Most π’s who win at trial Substitutionary Remedies
1. Compensatory Damages
a. Economic damages- compensate π for money lost or paid as a result of breach
b. Non-Economic damages- emotional distress, pain & suffering [hard to calculate]
2. Liquidated Damages
a. Typically contractual- agreed on by both parties beforehand
b. Used when actual damages are hard to calculate
3. Punitive Damages
a. Aim is to punish and deter ∆ for their bx
b. Usually requires willful reckless intent
c. Supreme Court 2 Approaches:
i. Procedural- Review of an award be de novo
ii. Substantive-amount awarded be proportional to the actual or potential harm
1. Degree of ∆’s responsibility
2. Disparity between harm and the damage award
3. Difference in award to other awards of similar cases
d. State Farm v. Campbell (296)- Punitive Damages awarded only when reasonable and proportionate to the wrong committed
i. State Farm’s handling of the case was wrong but there were more moderate and proportionate remedies available
4. Statutory Damages
a. Statutes set the minimum damage/range for infringement
b. Used when damages CANNOT be proven but infringement can
C. Specific Remedies
1. Injunctive Relief- Rule 65
a. Court order for the parties to do or stop doing something
b. Enforced through contempt proceedings
c. Have to show that legal remedy [$ damages] are INADEQUATE- Irreparable harm and public interest
d. Sigma Chemical Co. v. Harris (308)- In order to get injunctive relief π MUST be threatened by some injury for which he has no adequate legal remedy-
D. Declaratory Relief- Rule 57
1. Court determines who would win the case under the circumstance
2. May be sought to reassure 3rd party business deals or to induce the other party to comply with the law
3. Limited by Article 3 of Constitution- federal jx limited to “cases and controversies”
4. Nationwide Case- Insurance company seeking declaratory judgment that they have no duty to defend because acts were intentional and deliberate
E. Financing Litigation
1. Taxes pay for courtroom, judge, clerical staff and bailiff
2. Parties pay for other expenses [attorney fees, special court fees, expert witness
3. American Rule- each party pays own fees- discourages meritorious low-damage suits
4. English Rule-loser pays winner’s fees- encourages strong but low damage cases, discourages high cost “law reform” suits
5. Attorney fees:
a. Hourly fee- most common financing mechanism
b. Flat rate- set a specific amount for a particular matter
6. Insurance- makes promises to the insured:
a. Pay damages up to the limit AND
b. Provide a lawyer to defend
7. Contingent Fee- lawyer agrees to represent client- fee to be paid if the π wins [money taken from proceeds]
a. Standard- 20% settlement before filing; 25% filled but no other steps; 33% case goes to trial
F. Temporary Remedies- Rule 65
1. Provisional remedies- relief granted pending a final adjudication of the dispute [issue- judge must base decision on incomplete information]
a. §1292(a)(1)- exception to the finality rule [Appellate court gives discretion to lower court finding]
2. Winter v. Natural Resources ∆ Council (346)
Preliminary Injunctive Relief- Rule 65a
a. Elements π must prove
i. Π likely to succeed on the merits
ii. Π likely to suffer irreparable harm w/o relief
iii. Balance of equities tips in π favor
iv. Injunction is in the public interest
3. Stiles Case- GA has sliding scale- stronger showing in one factor will offset a lower showing of another factor
a. Factors to grant injunction
mplaints as they want, any one of the is sufficient, can be inconsistent
8e- Pleadings construed to do justice
B. Rule 9- Pleading Special Matters
9b- When a party alleges fraud or mistake a party MUST be specific in its pleading [malice, intent, knowledge- can be plead generally]
Stradford v. Zurich Insurance Co (401)- The counterclaims not sufficient because it required the “time, place, nature of misrepresentations” for fraud claim.
9g- Item of special damages is claimed is MUST be state specifically
C. Allocating Elements of a Claim
1. Burden of Pleading- who has the requirement to plead an issue
a. Π- elements of a claim
b. ∆- elements o an affirmative defense
2. Burden of Production- who has the responsibility to present the proof for a claim
a. If there is a tie- verdict for ∆ because π must prove in their favor
3. Burden of Proof- who has the responsibility of proving a claim
a. Tie- fact finder must judge against the party that had the burden of proof
b. Jones v. Bock (407)- Failure to exhaust was an affirmative defense for the ∆ to plead in answer NOT a burden π carried to dismiss the case
D. Rule 11- Ethical Limitations on Pleadings
11(b)- Representations- party makes to court in writing [pleadings, motions,
or other papers
11(c)- Motion for Sanctions and the nature of the sanctions is decided if
11(b) is violated;
· Could go to attorney or firm if they lied about legal allegation
· Could go to client if they lied about a factual allegation
· Limitations of Party Moving for Sanctions
o 11(c)2- Safe Harbor Provision- Must serve the other party with notice and give them 21 days to rectify before taking to court [MUST file separately]
o 11(c)3- Court can initiate Rule 11 sanction- then party must show why they shouldn’t be sanctioned [court has inherent power to order sanction on violations not covered in Rule 11
