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


Litigating in the USA: The Party-Centric Adversary Model

Traditional approach: The party-centric advocacy model
Party alignment is so important that it may be enough to overturn case;
Judges can’t be advocates
· Band’s Refuse Removal, Inc. v. Borough of Fair Lawn:

Modern approach: Shift away from the party-centric advocacy model
The law favors settlement, and allows judges to facilitate these settlements.
o Koethe v. Smith: Judges are allowed to facilitate settlements, but here, the judge demonstrated excessive zeal.

FRCP#16 (a)(5) Judges can facilitate settlements
o 16(c) If appropriate, ct may require that party be available by telephone to consider possible settlement disputes.
o 16(f) sanctions; if a party refuses to negotiate at all or if the party didn’t negotiate in good faith.

FRCP#68 “offer of judgment”
o ∆: “I’m willing to have a judgment entered against me for $X.”
o ∏: Decides if he’s going to accept the offer
§ If soà case is over. Settlement reached.
§ If notàif at trial ∏ recovers less than $X, ∏ has to pay the ∆ cost’s that occurred after ∆ made $X offer.
o Purpose: To make ∏ think real hard and consider ∆’s offer.

The Rewards of Litigation – What Relief can you get From the Court?
Due Process- Prong 1= Notice
Pre-judgment provisional remedies

Prob: You can’t get relief until after the trial is over, and even then collecting damages takes forever.
Solution: Pre-judgement remedy
· The Π asks the ct to seize control over real or personal property immediately upon the filing of the lawsuit until civil suit over, to ensure that there are assets left to take over.
o Ex. temporary restraining orders, prelim injunctions, seizure of ∆’s prop .

First consider whether the prejudgment seizure sought by the Π is authorized by state statute.

If so, fed cts must apply the state law concerning the availability of prejudgment remedies, unless a fed stat provides a prejudgment remedy. FRCP # 64

Due Process Concern:
· Problem: If Π doesn’t win, ∆ was deprived of their property during that time.
· Solution: SC repeatedly affirms that a person must be given notice of the action and the opportunity to appear before a court and raised their objections in advance of their case

~Doehr Governs as the Test used for judging Due Process
Doehr is a balancing approach for pre-judgment remedies determined by the facts of circumstances.
Connecticut v. Doehr:
3 Step Analysis based on Mathews v. Eldridge:
· Private Interest is HIGHà Interests of a home-owner were significantly affected by attachment of prop, even though there was no interference w/possession of prop. How? Bc the attachment can cloud title, impede sale, and interfere w/borrowing on the prop.
· Risk of erroneous deprivation is HIGHà St practice allowed decision based on a conclusory affidavit w/o prior notice and adversary hearing, and the underlying issue of this case did not lend itself to documentary proof.
· Public interest is LOWà Bc other states have more exacting requirements for seizure w/o notice.

Doehr Formula:
DI= Intrusion of ∆’s property interest by virtue of it being seized w/o proper hearing
PI= Risk to Π’s interest if the Π can’t have a prompt seizure of the prop.
RE= Risk of error if there is no pre-seizure hearing

Is DI outweighed by PI discounted by the RE?
Or… DI< (1-RE) * PI
Or.. Seizure w/o a hearing is justified only when the intrusion on ∆’s interest pending a hearing are outweighed by the Π’s interest in attaching the prop w/o notice discounted by the risk of the decision that the attachment will be erroneous.

Formula application to Doehr
DI= high intrusion (cloud title, affect credit, impede ability to take out college loans)
RE= high risk of error (nature of the case, we’re dealing w/a fist fight where there’s two stories that are usually very different)
PI= low Π’s risk (the Π didn’t have any preexisting legal interest in the house)
So… DI< (1-RE) * PI
HIGH < (1-HIGH) * (LOW)
HIGH < (very low) * (low)
HIGH < low = NO, so this is IMPERMISSABLE

Pre-Doehr factors compared to Current Doehr Formula:
1) Person w/ personal knowledge of the facts à goes to RE bc it shows how legitimate the initial ruling, specificity, accuracy.
2) Neutral judicial officer à goes to RE, bc if there’s a neutral officer, its taking out the one sidedness and its calling for something w/training in the law
3) Posts a bond to recover à reduce DI bc if a bond is posted, he has safety net. Also decreases RE bc if you have to put up bond, you’re less likely to do it if you don’t have a case
4) whether D has prompt hearing à DI bc it’s a safety net for the D to make sure that something isn’t unjustly taken from, the intrusion to his interest is likely to be less.
5) legal issue suitable on paper alone à RE bc if the case can be resolved based on hardline facts
6) P has pre-existing interest of the prop à PI bc if someone has a preexisting interest, then the interest weigh heavier
7) exigent circumstances à PI , bc D could make off with the property

· Pre-judgment provisional remedies are available under the circumstances and in the manner provided by the law of the state n which the d.ct is held.
o Qualifications
§ Any existing U.S. stat governs where applicable
§ The seizure shall be shall be commenced and prosecuted, or prosecuted after removal if removed from a st ct.

Post-judgment remedies
Damages: Financial reward from the ∆ to the Π.

~Categories of Damages
· Compensatory – Π’s actual damages
o What Π’s situation is and what the Π’s situation would have been had the Π not been wronged.
o Two things required
§ Harm must have been caused by ∆’s failure to fulfill legal duty owned to the Π.
§ Harm must be capable of monetary quantification
· not necessary for it to be precise, but can’t engage in rant speculation

· Other “compensatory” monetary relief (can reward when failed 2 prong compensatory test)
o Nominal damages
o Statutory damages
§ Prescribed amount of damages on the books for violation of the statute.
· Punitive damages
o To deter ∆ and others from engaging in the same kind of acts in the future.
§ NOT to compensate Π for harm suffered.
o Have to establish malice or egregious conduct, -AND- gross indifference to the public welfare

Damages are only intended to compensate actual injuries that are capable of monetary quantification.
Carey v. Phiphus: 2 students suspended from school w/o a hearing. Held: Nominal damages awarded to Πs.
· Can’t quantify the value of a day lost at a public school.
· On remand, if they can prove emo distress, they

al to end their dispute
· Arbitration
o The arbitrator has the authority to decide the dispute, not merely to try to get the parties to agree on a decision.
o This power is conferred onto arbitrator by the parties willingness to enter into arbitration.


Due Process- Prong 2=Personal Jurisdiction – The Necessary Relationship between D and the State

Kinds of Jurisdictions:
o In personam J
o A court’s power to bring a person into its adjudicative process; jurisdiction over a ∆’s personal rights, rather than merely over property interests.
o A person is subject to in personam jurisdiction on any of the following theories:
§ Presence, i.e., being served—no matter how brief stay(Pennoyer v. Neff,
§ Domicile (residence)
§ Consent to personal jurisdiction.
§ Implied consent: Hess v. Palowski, However, the state must provide actual notice to the nonresident defendant.
§ Minimum Contacts. (Int’l Shoe)

o In rem J:
o A court’s power to adjudicate the rights to a given piece of property, by exercising physical power to seize and hold it.
o The thing has to be w/in the territorial boundaries of the court
o Quasi in rem J:
o Jurisdiction over a person based on that person’s interest in property located w/in the court’s territory..
o The substance of the dispute has nothing to do w/the property.
o recovery is limited to the value of property that is within the jurisdiction

Modern focus: The D’s contacts w/the forum state
Doctrine of fraudulent inducement: invalidates service where Π has lured ∆ into the jurisdiction with falsehoods. Wyman v. Newhouse.
· Exceptions: If service took place after negotiations broke down, since it is evidence that the negotiations were in good faith and there was no fraud. Sawyer v. LaFlamme.

The court had to give into the legal fiction that the driver gave implicit consent to state laws when in drove into the state.
Hess v. Pawloski: Held: Implied consent to state when made the choice to drive through it.
BLR: A state does not violate a nonresident driver’s due process rights by enacting legislation that subjects the driver to jurisdiction in the state for all actions arising from use of the state’s public highways.
Application—didn’t need to be served actually. Registrar was surrogate, as long as notified.

The basic constitutional requirements

International Shoe v. Washington
§ Facts: IS didn’t pay Washington unemployment fund and Washington filed suit. IS objects since wasn’t physically in state (12 employees reported to SL)
BLR: no longer is a party’s physical present in a state necessary to establish in personam ju