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

Civil Procedure

Prof. Kordik (Spring 2014)

I. American Court System

A) State Courts

1) Courts of original jurisdiction: trial courts

a) Subject matter jurisdiction may be general or limited

2) Right to appeal adverse decision to intermediate appellate court

3) Appellate court of last resort (discretionary)

B) Federal Courts

1) Courts of original jurisdiction: federal district courts

a) Criminal and civil cases which fall within federal subject matter jurisdiction

b) Also have specialized courts which have limited subject matter jurisdiction

2) Right to appeal to Circuit Court of Appeals

3) Petition of certiorari to Sup Ct (discretionary)

C) 2 Requirements for Federal Subject Matter Jurisdiction

1) Constitution must confer federal court w/ subject matter jurisdiction (Art III § 2)


2) Congress must approve subject matter jurisdiction by statute

a) Does not have to be to full extent of Constitution

b) subject matter jurisdiction

i) Courts of “general subject matter jurisdiction”

· Can hear almost any kind of dispute

c) Federal courts: LIMITED subject matter jurisdiction

i) Courts of “limited subject matter jurisdiction”

· Outer limit of subject matter jurisdiction defined by Art III § 2

· 9 enumerated categories

d) Concurrent Jurisdiction: BOTH federal and state courts have subject matter jurisdiction

i) Typically federal and state courts have concurrent jurisdiction over 9 enumerated categories

e) Exclusive Subject Matter Jurisdiction: Congress gives jurisdiction to federal courts and prohibits state courts from hearing

i) Ex: patent cases (Title 28)

II. Prejudgment Provisional Remedies

A) Prejudgment Provisional Remedies: ask court to seize control of D’s person or property(and maintain control) until resolution of case on the merits to ensure satisfaction of the potential judgment (Rule 64)

1) Terms and requirements are governed by state statutes

2) VERY hard to get à only in exceptional circumstances

3) Do Pre-Judgment Remedies Comport with Due Process? (no state shall deprive right to life, liberty or property w/o due process of law)

a) Court’s Interpretation of Due Process Requirements:

i) Prior notice of lawsuit, and

ii) Opportunity to be heard by court (before lawsuit),

· Issue b/c no adversarial proceeding before seizure of property

· Purpose of proceeding:

– Promote fairness (and D’s feeling of fairness)

– Minimize unfair or mistaken deprivation of property

iii) EXCEPT in extraordinary circumstances

· No single standard b/c governed by diff state statutes

b) Due Process Balancing Test: DI < (1 – RE) x PI

i) Qualitative test looking at circumstances on case-by-case basis

ii) DI = impairment of D’s interest if there is NO prior hearing

· With pre-judgment lien on house: DI is “modest”

– Only issue if planning on selling

iii) PI = impairment of P’s interest if there IS a prior hearing

· May vary w/ amt of damages sought

· Ease (or likelihood) of hiding asset

· Pre-existing interest?

iv) RE = risk of error if there is NO prior hearing

· Even w/ sworn affidavit – still only one side of the story

· How fact-sensitive is the type of case?

· Is the case the type that may vary based on perspective (like in a bar fight)?

v) See Connecticut v. Door for example

B) Ex-parte prejudgment Remedies (seizure without a prior adversarial hearing) may comport with due process if:

1) Person with personal knowledge of facts supplies a specific statement of facts, under oath (i.e. affidavit) that sets out a prima facie claim for prejudgment seizure of property

a) Under oath = more accurate = ↓ RE

b) Specific facts = ↓ RE

2) A judge determines the factual showing is sufficient (before issuing the writ for seizure)

a) Neutral party w/ legal training = ↓ RE

3) P posts a bond to cover any damages caused by an improper seizure

a) D can collect if improper = ↓ DI

b) Deter creditor from asserting groundless claim given chance of loss of bond

4) D has right to demand a prompt post-seizure hearing where the burden of proof remains on P

a) Chance to quickly hear other side of story (vs. just P’s affidavit) = ↓ DI

b) Probably also ↓RE (specter of quick hearing = more likely truth)


5) Is dispute suitable for resolution on papers alone? (RE)

a) Need for adversarial hearing (if have multiple witnesses saying different things more need)

6) Does P have a pre-existing interest in the property (PI)

7) Are there exigent circumstances that indicate a need for prompt action? (PI)

a) Nature of property (relates to likelihood of hiding assets)

b) Likelihood of selling assets/plans to do so

III. Post-Judgment Remedies

A) Post-Judgment Remedies: winning P only entitled to relief after suit is resolved

1) Can be months or years after filing suit

2) Possible issues for P (or potential P):

a) Unable to wait for relief

b) Unable to recover from D after suit (move/hide assets, bankruptcy)

B) Monetary Damages: enforced by writ of execution (procedures for execution must be in accordance w/ state statute Rule 69

1) P must show:

a) Causation (injury caused by D)

b) Monetary value of injury (give evidence for fact-finder to conclude appropriate amount vs. speculation)

2) Compensatory

a) Actual Compensatory Damages: compensate for P’s particular injury

i) Most common

ii) Assign monetary value to P’s situation now and before and compare

· Pain and suffering

· Lost future wages

· Medical expenses

b) Other Compensatory Monetary Relief (don’t reflect actual extent of P’s injury)

i) Nominal Damages: small amt of damages

· Don’t necessarily reflect actual harm to P

· Represents fact that D breac


d) Permanent injunction after judgment entered

D) Declaratory Judgment: binding judgment by court stating rights & duties of parties

1) Used if P expects to be sued – can be proactive and ask court basically to decide underlying issues (doesn’t change anything)

2) 28 USC § 2201: Authorization for lower federal courts to issue

3) Rule 57: existence of other adequate remedies does not preclude declaratory judgment AND court may order speedy hearing

a) P can ask for declaratory judgment along w/ other remedies

IV. Costs of Litigation

A) Attorney’s Fees

1) Loser pays costs (other than attorney’s fees) incurred by winner Rule 54(d)

a) What “costs” are recoverable? § 1920

b) Is it a substantial benefit to have costs paid? Yes and no

i) Doesn’t include big expenses in litigation (unlikely to be more than a few thousand dollars)

2) General Rule: Everyone pays their own attorney’s fees (except for limited exceptions where statutes provide otherwise for cases brought under that specific statute)

a) VAST majority of cases, winning party can’t recover its fees

b) In Venegas, statute allows court to require loser to pay reasonable attorney’s fees in civil rights cases

c) Litigation is expensive (even on contingency fee basis)!

B) Alternative Dispute Resolution

1) ALWAYS consider settlement (maybe even before a lawsuit is filed)

a) Reduce cost + faster recovery = more likely win-win situation

b) Even after winning – just a license to go on a hunting expedition for judgment debtor’s assets

2) Finding the Debtor’s Assets

a) Typically, has to fill out “Statement of Assets” form

b) If doesn’t, judgment creditor can ask court for order of examination or judgment debtor’s examination: requires debtor to appear in court and provide information personally

i) If fails to appear, court can issue bench warrant for arrest

3) Must get Writ of Execution/Writ of Garnishment/Writ of Attachment

a) Possible methods

i) If know where judgment debtor works, can use wage garnishment

ii) If know where banks – bank account levy

iii) Real property Lien: can put lien on real estate owned by debtor

· Taking other property (not real property) is difficult, often not worth it for small judgments

b) Uniform Enforcement of Foreign Judgments Act – standard procedures for going after debtor’s assets across state lines