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Civil Procedure I
University of Illinois School of Law
Kordik, Ellen R.

Kordik                          
Civil Procedure                     
Spring 2012
 
I.            Introductory Materials
1.      Definition of civil procedure: processes and procedures for handling non-criminal disputes
                             i.      Usu. disputes between private parties, but gov’t could be one or both parties
                           ii.      Civil litigation is primary method for dispute resolution in American society
                         iii.      Governs conduct inside court roomàas opposed to substantive which governs human behavior in the world at large
                          iv.      Provides just, efficient, economical way to resolve civil disputes
o   See FRCP 1: “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”
2.      Considerations:
                             i.      When can costs of litigation be justified?
                           ii.      When should public be able to utilize court system?
                         iii.      When would something like arbitration be more appropriate?
3.      Civil pro is dominated by positive law:
                             i.      US constitution: sets limits for jurisdiction, provides for Due Process, notice requirement etc
                           ii.      Statutes: govern state subject matter, venue, personal jurisdiction, etc
                         iii.      Federal Rules of Civil Procedure
a)      Positive law is contrasted with substantive common law
4.      US litigation system is party-centric, adversarial model
                             i.      Parties initiate, propel lawsuits
                           ii.      Judge plays passive, umpire role
                         iii.      Parties have burden to present grievances to court
5.      BANDS REFUSE v BOROUGH OF FAIR LAWN
                             i.      Issue is propriety of trial and judge’s actions in light of party centric, adversarial model
                           ii.      Course of suit:
a)      File complaint:initial pleading by which lawsuit is commenced
o   Pleading:document filed setting out claims or defensesà3 components
 
Allegations: short statement of fact telling P’s story
Causes of action:legal theory under which entitled to claim for relief
Prayer/request for relief: what want court to do
b)      Ask for declaratory judgment that ordinance invalid and void
c)      Town officials filed answer: response to P’s allegation in P’s complaint.
d)      Caspassos were interested party to suit because they had the exclusive K for trash in cityàcourt could have ordered they be brought in in compulsory joinder:
o   FRCP 19: if presence in suit is necessary to protect their interests, court will compel them to enter suit
e)      What actually happens to Caspassos is intervention:
o   FRCP 24:outsider to suit files motion to be let into suit
f)       C’s then file counterclaim:another form of pleading in which D makes claim against P (in this case, sought injunction from collecting garbage and getting a permit)
g)      P files amended complaint:
o   FRCP 15:add, delete, modify some part of complaint
o   Sometimes need court’s permission to amend pleading, but courts liberal in allowing this
o   Courts consider:
§ Does it inject new issues
§ Is it legitimate addition
§ Did P investigate this claim previouslyàgoverned by FRCP 11
h)      12th day of trial, town wished to switch sides and make a cross claim against C’s
o   Cross claim is claim against party on your same side of action
o   Court would not allow this b/c it was contrary to perception of fairness-shows commitment to adversary system
                         iii.      Judge’s behavior
 
Called/questioned witnesses
Expanded issues over parties’ objection
Appointed amicus to investigate fraud
Zeal for public interest
a)      Individually, not improper per se, but are wrong in combo b/c judge was more than just passive participant
b)      More likely to be correct result when judge isn’t personally involved
c)       Parties have sufficient stake to guarantee good trial w/o interference from judge
 
6.      KOTHE v SMITH:
                             i.      Judge held pre-trial conference & told parties to settle for some amount
a)      Warned them if began trial, then later settled for that amount would sanction them
b)      They began trial, settled, then one party was sanctioned by judge
                           ii.      This was essentially pre-trial settlement/negotiation
a)      Judge should have more flexibility pre-trial because trying to keep d

few years after Fuentes…why?
a)      Required affidavit saying reason to believe D would hide property
b)      Political thing-2 new members on court so views on pre-judge seizures change
                           ii.      Main point: some procedures short of pre-trial hearing can be constitutional
a)      Claim made to judge, not clerk so subject to judicial scrutiny
b)      If property wrongfully seized, D can get damages
c)      Provide for hearing after prop seized to show no grounds for seizure
d)      Have to show specific facts in sworn affidavit
6.      N. GEORGIA v DI-CHEM:
                             i.      One year later, Georgia statute UC
                           ii.      None of safeguards of Mitchell including no bond had to be filed by creditor
7.      Rule after these cases: ex-parte pre-judge remedies comport with DP only if
                             i.      Person with personal knowledge of facts supplies specific statement of facts under oath, establishing prima facie claim for pre-judge seizure of property
                           ii.      Neutral judicial officer determines factual showing is sufficient before issuing the writ
                         iii.      P posts bond to cover any damags caused by improper seizure
                          iv.      D has right to prompt post-seizure hearing where burden of proof remains on P
                            v.      (Is legal issue suitable for resolution on papers alone?)
                          vi.      (Does P have pre-existing interest in property?)
                        vii.      (Are there exigent circumstances indicating a need for prompt action?)
8.      SC’s current approach to pre-judgment issue:
                             i.      CONNECTICUT v DOEHR:
a)      Put lien on D’s house in anticipation of battery suit
b)      Establish 3 part balancing test, which is often the case for DP issues
o   Test: [DI