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

Civil Procedure Outline
 
I.        Deciding Whether to Sue or Not to Sue – What Should You Consider?
A.      Litigating in the USA: The Party-Centric Adversary Model
                   1.            FRCP 1,2, 16; 28 USC § 2072
                   2.            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.
                   3.            Adversarial Model:
a.        The parties initiate and propel the litigation in this model
b.       The judge plays a passive role
c.        Burden is on the lawyer to continue moving the litigation forward
d.       Party-centric model of litigation
                   4.            Band’s Refuse Removal, Inc v. Borough of Fair Lawn: 1960
a.        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.
b.       Procedure:
i.         In the complaint, Band’s wanted a declaratory judgment (stating their rights) and an injunction to have the city return Capasso’s permit fee.
ii.        The city files an answer, and plead that the law is legitimate because permits were sold by open bidding. The Capasso’s jump into the defense as well.
                                                       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 in.
                                                       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
                                                       C.            The judge gets involved acting as an ombudsman, calling in witnesses, injecting new issues, coercing pleadings, and showing zeal for public interest
c.        MORAL: Important for the judge to show indifference and impartiality than getting the right result
i.         Each of the parties represented by their own advocates are more likely to lead the judge to the right result. It is more likely to get the right result by allowing the parties to fight it out in front of an indifferent judge, rather than the judges seeking out his own view of justice.
ii.        Also, people value their day in court, feeling of fair treatment
                   5.            Kothe v. Smith
a.        Distinction with Band’s: This judge is actively promoting pre-trial settlement. In Bands, the judge was presiding as an adjudicator.
b.       Judge exerting pressure to settle
i.         The traditional view is that this is very inconsistent with the party centric adversarial model
ii.        The modern view is that judges should get involved in getting parties to settle.
c.        Why settle?
i.         Sympathetic plaintiff, financially practical, possible greater loss in trial loss.
d.       Why does the law prefer settlement?
i.         Efficient resolution of disputes
ii.        Philosophically it might be better for people to resolve their conflicts amongst themselves
B.       The Rewards of Litigation – What Relief Can You Get From the Court?
                   1.            Pre-Judgment provisional remedies / Due Process
a.        FRCP 64
b.       Context: ∏ should know that if they sue, there will be considerable lag in getting a remedy. Non-legal resolutions should be sought out. ∏s  should be able to secure assets to make sure that when the lawsuit concludes there is still some assets available for the plaintiff to take.
c.        Prejudgment Remedy: ∏ goes to the court and asks it to seize control over the assets of the ∆, and maintain it until there is a final resolution of the lawsuit.
d.       Due Process: No loss of life, liberty, and property without due process of law.
i.         Means that you have to have notice and an opportunity to be heard
e.       Fuentes v. Shevin: 1972
i.         FACTS: Fuentes was delinquent in paying for her appliances. The retailers got pre-judgment seizure authorization and took her stove. The state only ex parte application to get the authorization. State court lawsuit and the federal lawsuit. Fuentes in two lawsuits. State court: Firestone sued Fuentes for stove and stereo. Federal court: Fuentes files a federal court action challenging the state statute’s constitutionality
ii.        ISSUE: Is this a violation of Fuentes’s due process rights? Prejudgment hearings are the best way to reach the right result. More important than ideals of fairness (because usually it is fair play).
iii.      HOLDING: Since Fuentes never had a right to be heard, it’s a violation
iv.      FUENTES RULE: Unless there is some special circumstance, a preseizure hearing is necessary.
                                                       A.            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
f.         Mitchell v T. Grant Co.: 1974
i.         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.
ii.        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 ∏’s due process rights.
g.        North Georgia Finishing, Inc v. DI-Chem, Inc.: 1975
i.         Georgia statute fails constitutionality.
                                                       A.            No judicial involvement
                                                       B.            No provision for early post seizure hearing.
                                                       C.            No posting of bond
h.       Conneticut v. Doehr
i.         FACTS: DiGiovanni was beat up by Doehr. Connecticut allowed a lien on Doehr’s home.
ii.        The current approach to prejudgment remedies and the current question of due process: Three part balancing test
                                                       A.            Doehr Balancing Test
1.       DI = intrusion into defendant’s interests if there is no hearing
2.       PI = risk to plaintiff’s interests if there is no prompt seizure
3.       RE = risk of error without a hearing
4.       Seizure without notice & hearing only if DI < (1-RE) X PI                                                        B.            So if the risk is high, defendant will likely win. i.         Pre-Doehr i.         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 prejudgment seizure of the property. POST DOEHR, this is a concern for RE (risk of error).                                                        B.            A neutral judicial officer determines the factual showing is sufficient before issuing the writ. POST DOEHR, this is a concern for RE.                                                        C.            Plaintiff posts a bond to cover any damages cause by improper seizure. POST DOEHR, this is a concern for DI.                                                        D.            Defendant has the right to a prompt post-seizure hearing where the burden of proof remains on plaintiff. POST DOEHR, this a concern for DI. OTHER FACTORS                                                         E.            Is the legal issue suitable for resolution on papers alone? POST DOEHR, this is a concern for RE.                                                         F.            Does plaintiff have a pre-existing interest in the property (e.g., a lien)? POST DOEHR, this is a concern for DI/PI.                                                        G.            Are there exigent circumstance that indicate a need for prompt action?   POST DOEHR, this is a concern for PI.                    2.            Post-Judgment remedies a.       Damages i.         FRCP 69 ii.        Damages                                                        A.            Compensatory damages - actual: damages that tries to put the plaintiff in a position before breach by defendant in monetary value. 1.       For the court to award the plaintiff must show: 1) causation by defendant, 2) the harm must be capable for monetary quantification (cannot be speculative) 2.       If the court is not able to give compensatory damages, then it can give other compensatory damages                                                        B.            Other compensatory monetary relief 1.       Nominal: a way for the court to recognize that the defendant is liable for some legal duty owed to the plaintiff, when there is no harm or when the value of harm is difficult to prove. a.        What value? Vindication, for the record, perhaps making other types of relief available (punitive, equitable), attorney fees. 2.       Statutory: a prescribed amount of damages to be awarded to those that had their interests breached by a defendant violating a particular statute.                                                        C.            Punitive damages: the goal is not to compensate. Purely to deter conduct. Egregious conduct needs to be proved, usually. iii.      Carey v Piphus                                                        A.            FACTS: Piphus was caught with a joint. He was suspended without due process. Brisco violated no earring rule and thus suspended without due process. Both sought declaratory relief, injunctive relief, compensatory relief, and punitive relief. The trial court had given the boys prejudgment remedy by ordering the students back into school prior to the full servicing of the suspension. The courts had ruled that the status quo was important to hold until trial.                                                        B.            HOLDING: Even if the boys had not been given due process, and they lost days of school, there would be no compensable injury in the lost days because the lack of due process did not cause the lost days.                                                        C.            RULE: If the temporary preliminary injunction lasted more than 10 days, then there must have been a hearing. 1.       RULE 65, a1 (preliminary injunction): there must have been advance notice given by the court because the rule requires it. 2.       RULE 65, b2 (temporary restraining order): there doesn't have to be advance notice to the adverse party, but it could not last longer than 10 days. For it to be extended, there must be either a hearing or agreement by the adverse party 3.       Why 10 days? Concern for the DI 4.       TEST (conjunctive): To be granted these prejudgment reliefs, plaintiff must show 1) strong likelihood of success

the money. Venegas has 1M in escrow, and the judge also orders the city to pay 117K in attorney’s fee to Venegas because it’s a civil rights case. 75K was to go to Mitchell. In addition to his share of attorney’s fees, Mitchell now goes after his 40% of the award, making its way to the Supreme Court.
c.        ISSUE: Was the award to Mitchell appropriate?
d.       HOLDING: Yes, the parties had the power to contract the contingency fee and the statutory award does not put a ceiling on awards. Mitchell wins the contingency
                   3.            Venegas Analysis
a.        The only risk that Venegas had was if his lawsuit was considered frivolous.
b.       Why the difference for civil rights cases? Want private “attorney generals” to bring lawsuits against governmental entities.
                   4.            Costs
a.        Rule 54(d)
i.         Court costs should be paid by the losing party.
ii.        This is very small compared to the attorney’s fees
b.       Rule 28 § 1920
i.         Costs are fees for the court, marshal, printing, copying, court appointed experts, interpreters
c.        Unless there is federal statute that allows for the fee-shifting to the losing party, the court cannot order shifting of attorney’s fees.
i.         28 USC § 1923 allows for some shifting of attorney’s fees, but it’s in very, very small amounts
ii.        If the loser conducts in bad faith, prevailing party can get their fees paid for. It’s in the court’s inherent powers. Rare situation.
d.       28 USC § 1927, if an attorney acts unreasonably and vexatiously to multiply the proceeding, the other side can have their attorney fees paid for.
e.       28 USC § 1988: a court may award a reasonable attorney’s fee to the prevailing party in civil rights cases. “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs”
i.         “may include expert fees as part of the attorney’s fee”
D.      Alternatives to Litigation
II.      Choosing the Forum (Part 1) – Geographical Location: Where to Sue?
A.      Personal Jurisdiction – The Necessary Relationship Between the Defendant and the State
                   1.            Traditional focus: The Power of the Forum State to Enforce its Judgment
a.        Pennoyer v. Neff: 1877
i.         Facts: Mitchell sued Neff in OR for failure to pay for legal services. Neff owned land in OR. Mitchell served Neff notice by publication in CA. Neff, failing to answer, had his land sold at auction, and eventually title went to Pennoyer
ii.        Issue: Did OR have jurisdiction to grant Mitchell verdict and have his land sold?
iii.      Holding: No.
                                                       A.            PRINCIPLE: No state can exercise jurisdiction and authority over persons or property outside its territory. RULE: Actions brought against non-residents, where the action is in the nature of a proceeding in rem.   RULE: a State may not authorize proceeding to determine the status of one of its citizens towards a non-resident, which would be binding within the State.
                                                       B.            A court can enter a valid judgment in personam only when jurisdiction has been obtained by personal service of process in the state, although it does not matter that the defendant was present in the state only briefly
                                                       C.            Personal service is not necessary for the state to exercise its power over property in the state.
iv.      Why it still matters: Ever since this case, the SC has consistently held that plaintiffs are not free to bring suit wherever they choose. The 14th Amendment forbids the States from depriving citizens of Due Process. ALSO, can still serve someone that is physically present in the state.
b.       Harris v Balk: 1905
i.         Facts: Harris was on a business trip in Maryland and was ordered by MD court to pay the money he owed to Balk to Epstein. He did. When he got back home, Harris was sued by Balk for the money he paid to Epstein. North Carolina refused to accord MD court “full faith and credit”, and ordered Harris to pay Epstein.
ii.        HOLDING: The SC reversed saying that Maryland has jurisdiction over the garnishee (agent) of the debtor by personal service of process in Maryland. Balk can sue Epstein in Maryland if he wants, but can’t sue Harris because NC has to give MD court full faith and credit.