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

Civil Procedure
Spring 2014
1.       The processes and procedures the court system has put in place to handle and resolve non criminal disputes
a.       Civil means non criminal
b.      Disputes can be between…
                                                   i.      Private parties
                                                 ii.      Individuals and the government
                                                iii.      State and another state
c.       Procedure = procedural law not substantive law
                                                   i.      Procedural vs. substantive
1.       Substantive law
a.       Legal standards, duties and obligations imposed by law on members of society
b.      Legal standards in which society controls human conduct that people owe to each other
c.       Controlling conduct outside the courtroom
                                                                                                                           i.      Every day life
2.       Procedural law
a.       Governs conduct inside the courtroom
                                                                                                                           i.      Within a lawsuit
1.       How you go about resolving disputes
b.      Governs the enforcement of substantive law in lawsuits
c.       Rules that must be followed
d.      To provide a just and efficient economical means in order for parties to resolve disputes
2.       Jurisdiction – A courts power and authority to act on certain kinds of cases and disputes
a.       Subject matter jurisdiction
                                                   i.      The definition of the kinds of definitions and disputes a court can decide
                                                 ii.      The power of the court to hear certain types of cases
                                                iii.      Exclusive subject matter jurisdiction
1.       Patent issues are under the exclusive subject matter jurisdiction of the US Federal Courts
b.      Concurrent jurisdiction
                                                   i.      When two types of courts are able to hear the same types of cases
1.       State and federal courts have concurrent jurisdictions to hear issues of federal law or any issue regarding Article III Section 2
Difference between federal and state courts
1.       State courts have very broad subject matter jurisdictions
a.       General subject matter jurisdiction
b.      Can hear almost all types of disputes
c.       State legislature create state courts and defines what their jurisdictions are
                                                   i.      They do this because by giving broad subject matter jurisdictions, hearings can be heard in their own states
2.       Federal courts are courts of limited subject matter jurisdiction
a.       Are authorized by the constitution and congress to hear very narrow cases
                                                   i.      National interest cases
1.       Art. III Section 2
b.      It is up to congress to bestow upon lower federal courts the types of cases it can hear
                                                   i.      Can create new federal specialized courts
c.       If a case does not fall into one of these nine categories then the federal court cannot hear the case
                                                   i.      Cases dealing with the constitution, laws of the united states, and treatise
                                                 ii.      Cases affecting ambassadors, other public ministers and consuls
                                                iii.      Cases of admiralty and maritime jurisdiction
                                               iv.      Cases in which the United States is a party
                                                 v.      Cases between two or more states
                                               vi.      Cases between a state and citizens of another state
                                              vii.      Cases between citizens of different states
                                            viii.      Cases between citizens of the same state claiming lands under grants of different states
                                               ix.      Cases between a state, or citizens of a state and a foreign state, or citizens of a foreign state
d.      Why did the drafters of the constitution limit jurisdiction of federal courts?
                                                   i.      Because the drafters felt that the federal courts were more adept and trying these cases fairly but they wanted to limit the powers of the federal court
                                                 ii.      Still allow sovereignty of state courts
Federal Civil Procedure (Procedural Law)
Deciding Whether to Sue or No to Sue – What Should You Consider?
1.       Litigating in the USA: The Party-Centric Adversarial Model
a.       FRCP 1, 2, 16; 28 USC 2072
b.      Procedure serves to validate the integrity of the legal system as a whole by providing a remedial process that replaces much more destructive motivations like self-help and personal retribution
c.       95% of cases don’t go to trial and in the federal system 98% of cases don’t go to trial
d.      Positive Law:
                                                   i.      Law you find in statutes and regulations
1.       There are some laws that do come out of case law but predominantly determined by laws found in statutes and regulations
                                                 ii.      Types of positive law
1.       U.S. Constitution
a.       Due process clauses (5th Amendment; due process in federal court & 14th Amendment; due process in state court)
                                                                                                                           i.      Notice – a litigant has a right to a notice of an action taken against them
                                                                                                                         ii.      Opportunity to be heard
2.       Statutes – Title 28 in USC
3.       Federal Rules of Civ. Pro – written by judicial center which is overseen by the Supreme Court because congress has delegated the responsibility to the Court to determine the procedures that need to be followed
e.      Adversarial Model:
                                                   i.      The parties initiate and propel the litigation in this model
                                                 ii.      The judge plays a passive role
                                                iii.      Burden is on the lawyer to continue moving the litigation forward
                                               iv.      Party-centric model of litigation
f.        Band’s Refuse Removal, Inc. v. Borough of Fair Law: 1960
                                                   i.      Facts: Capasso won contract from the city and then the city passed a law saying garbage companies must have permits and that permits can only be given to those with contracts. It resulted in a Capasso monopoly. Band’s Refuse could no longer legally haul Western Electric’s garbage
                                                 ii.      Procedure: Appeal from final judgment from a bench trial that found in favor of Band’s against the city
1.       In the complaint at trial court, Band’s wanted a declaratory judgment (stating their rights) and an injunction to have the city return Capasso’s permit fee
a.       A complaint contains
                                                                                                                           i.      factual allegations
                                                                                                                         ii.      cause of action (legal theories)
                                                                                                                        iii.      specify the relief or the remedy
2.       The city files an answer, and pled that the law is legitimate because permits were sold by open bidding. The Capasso’s later jump into the defense as well because they have an interest in the eventual decision of the court
a.       The court could have ordered the Capassos in because their interest could be impeded by a decision by the court. Rule 19, the courts can order parties into a lawsuit
b.      Capassos can also voluntarily enter into the case. Rule 24 intervention, the outside party can plead into the case, even over the objection of the other parties
                                                                                                                           i.      Capassos escalated the dispute by filing a counterclaim against the plaintiffs (Bands)
1.       Capassos asked the court to grant an injunction to disallow Band’s from collecting garbage from Western Electric
c.       A grand jury investigation is carried out next
                                                                                                                           i.      Criminal activity was found and indictments were made on city officials in regards to the bidding process
1.       Band’s then amended their complaint adding that the bidding process was carried out fraudulently. Rule 15 states that a party can amend their claim during the litigation process
2.       In order to amend a claim, a party sometimes must get a courts permission

i.      Special circumstance 3 part conjunctive test:
1.       Seizure must be necessary for governmental/public interest
2.       Show a need for prompt attention
3.       Must be decided by a government official responsible for weighing the needs
3.       Mitchell v. T. Grant Co.: 1974
a.       FACTS: In Mitchell, the state required a credit affidavit (sworn statement) saying that they had reason to believe that Mitchell might get rid of the property so that state could not seize property in pre-judgment remedy
b.      HOLDING: Since there is documentation and the state expressly provides for an immediate hearing and dissolution of the writ, it is enough to not violate defendant’s due process rights
4.       North Georgia Fishing, Inc. V. DI-Chem, Inc.: 1975
a.       Georgia statute fails constitutionality
                                                                                                                           i.      No judicial involvement
                                                                                                                         ii.      No provision for early post seizure hearing
                                                                                                                        iii.      No posting of bond
                                                 v.      Pre-judgment seizures post-Sniadach/Fuentes/Mitchell/DiChem (OLD VIEW)
1.       Ex Parte prejudgment remedies comport with due process only if:
a.       A person with personal knowledge of the facts supplies a statement of facts, under oath that sets out a prima facie claim for the pre-judgment seizure of the property. (Goes to RE)
b.      A neutral judicial officer (i.e., a judge) determines the factual showing is sufficient before issuing the writ. (Goes to RE)
c.       Plaintiff posts a bond to cover any damages caused by improper seizure. (Goes to DI)
d.      Defendant has the right to a prompt post-seizure hearing where the burden of proof remains on plaintiff. (Goes to DI)
e.      Is the legal issue suitable for resolution on papers alone? (Goes to RE)
f.        Does plaintiff have a pre-existing interest in the property (e.g., a lien, mortgage or other security interest)? (Goes to PI)
g.       Are there exigent (pressing) circumstances that indicate a need for prompt action? (PI)
                                               vi.      Connecticut v. Doehr
1.       FACTS: DiGiovanni was beat up by Doehr. Connecticut allowed a prejudgment lien on Doehr’s home without notice and without a trial
2.       The current approach to prejudgment remedies and the current question of due process: three part balancing test (MODERN VIEW)
a.       Doehr Balancing Test
                                                                                                                           i.      DI = Intrusion into defendant’s interests if there is no hearing
                                                                                                                         ii.      PI = risk/impairment to plaintiff’s interest if there is no prompt seizure
                                                                                                                        iii.      RE = risk of error without a hearing
                                                                                                                       iv.      Seizure without notice and hearing is constitutionally ok only if DI < (1-RE) x PI b.      So if the risk is high, defendant will likely win c.       Don’t try to quantitatively solve the equation                                                                                                                            i.      Not in numbers but in the abstract; if the factors in the equation are high or low