CIVIL PROCEDURE II
PETRUCCELLI
SPRING 2012
I. EXECUTION AND CONTEMPT (Griggs, JR, Courtney)
>Ejectment: device to get defendant off land; requires proof of lawful ownership
>Writ of Execution: Lawyer>Clerk>Sheriff; Sheriff is authorized to take action to satisfy judgment, ex. levy (verb) property at City Registry to show a lien (noun)
>Court of Common Pleas: common law court
>If there was no remedy in common law, you went to Equity Court of Chancery
>Chancery had original jurisdiction: plaintiff must prove Common Law had no remedy
-if you had legal remedy in common law, you couldn’t go to court of equity
>Equity Court’s only method of enforcement was to use jail for contempt.
-Today, Rule 70 allows judgments for specific acts
II. THE CIVIL ACTION
>1) Replevin; 2) Detinue; 3) Debt; 4) Account; 5) Covenant; 6) Trespass; 7) Case; 8) Trover; 9) Assumpsit
>Functions of Court: affected by history; what is the proper business for the Court?
>If plaintiff used incorrect action (Writ), the action would fail: no right to be in court
-at time, you couldn’t plead in alternative
-Courts tried to fit cases into proper writs, creating disagreements
>Rule of Fed Procedure 2 is modern attempt to move from different actions to single one
Willful
Negligent
Direct (immediate)
Trespass
Case or Trespass
Consequential (Indirect)
Case
Case
Trespass and Case (Scott, Day, Leame, Williams)
>Final Rule:
-Trespass in Arms: acts that are immediate and willful
-Trespass OR Case: acts that are immediate and not willful
-Trespass in Case: acts that are consequential
> Trespass in Arms and Trespass in Case not mutually exclusive, willfulness important
> Case has become an all-purpose action for injury
-useful when parties have culpability, other writs don’t fit
Trover (Gordon, Swift)
Trover: action for conversion of goods, wrongful seizure of property
First issue: who’s property? Trover require right to possession & right to ownership
Property owner does not have property interest if leasing to someone else
Although property interest is lost during a lease, violation of lease will revert the interest back to the original owner
Case useful for property owner if property in bailment – if only has right to ownership
Trespass action (in alternative to Trover) requires right to possession
Modern Concept of Actions (Hurn)
>Injunction: Court enjoins a party from doing something
>Accounting: Court requires party to present information to determine money owed
>If there is separate, distinct cause of action that is not Federal, no Federal jurisdiction for that action: case is subject to dismissal at any point
>If two separate grounds for a single action and one is Federal, Court has jurisdiction to decide on State or Federal grounds: policy is settle w/o people going from court to court
>The same facts can give rise to several actions.
Relation of actions to power of the Courts (Bell, Bivens)
>If plaintiff asserts violation of a Federal right, the Federal Court must decide issue on merits, except where federal right claim is frivolous
>Courts always have the authority to decide if they have jurisdiction
>For constitutional violations, Federal courts have jurisdiction, may award damages
>Granting of subject jurisdiction by Congress implies power to grant relief
-includes damages, equitable relief: injunctions, striking statutes, contempt jailing
Modern Struggle with Concepts of Actions and Relief (Compuserve, Grupo)
>Money Judgment in Common law is “Legal” (ex. action in debt)
>Preliminary Injunction: granted before trial to prevent continuing or impending harm
>Permanent Injunction: when preliminary injunction merges into a final decision
>Courts have no power of injunctive relief to freeze debtor’s assets before judgment
>Court equity powers are limited to those of Court of Equity as of Judiciary Act of 1789.
-in 1789, there was no power to freeze assets of debtor before judgment
-modern pre-judgment lien called “Writ of Attachment”, only within jurisdiction
>Debate if power of Equity should evolve and increase over time; Petrucelli thinks yes
Problem 1 question based on old cases – See class notes and compare with problem
>FIND OUT WHAT ACTIONS WE NEED TO KNOW! Case, Trespass, Trover
Issues: 1-Who has possession? 2-Who can be plaintiffs? 3-Who can be defendants?
III. RES JUDICATA AND COLLATERAL ESTOPPEL
Res Judicata
>Res Judicata: final judgment from first suit precludes the second suit
>Res Judicata is an Affirmative Defense
>Policy Reasons: 1) should not be vexed twice for same cause; 2) end to litigation
>Elements of Res Judicata:
1-Final judgment on the merits by court of competent jurisdiction
2-Identical cause of action
3-Identity of parties to the first suit
>People bound by judgments:
1-parties; 2-privy to parties; 3-people whose interests are represented
>Res Judicata applies to all justiciable questions including constitutionality & jurisdiction
What is considered an identical cause of action? (Clancey, Mason)
>RULE: Cause of action is set of facts (Transaction Test) that may provide plaintiff relief
>Courts organize business through Transactions (contracts, occurrences, collisions, etc.)
>Question asked: What information necessary to resolve issue? Everything else ignored
>”Bar”: method for stopping an action; Judgment is bar to future actions
>Merger: if won, the cause of action is merged into the judgment and damages
>”Claim Splitting”: allowing two separate causes of action stemming from same incident
>Lower Courts are not able to outright overrule decisions of higher courts
>If Res Judicata bars an action, it will bar the same action AND any matter that could have been tried based on the same cause of action; policy is to end litigation
>”Privity” – mutual/successive relationship or same interest between parties
>Privity applied to a judgment if a party’s interests have been legally represented at trial
An exception to relitigation on same facts (Zurich)
>Court creates exception for insurers to relitigate issues based on insured’s transaction
– promoting settlement between insurer and insured w/o fear of losing legal rights
>”Subrogation”: standing in the shoes of the insured
Final Judgment of the Merits? (Patterson, Keidatz)
>Issues court considers: efficiency, merits, fairness to parties
>If issue is never proven yes or no – should not preclude later determination
>Final Judgment: poor judgments still hav
l elements:
1) adequate notice
2) right to present evidence and legal argument (opportunity to litigate)
3) formulation of law/fact issues – admins. make laws, determine compliance
4) rendition of a final decision
5) procedural elements necessary to determine matter conclusively; ex. appeal
>Court is allowing effective adjudication without the presence of a judicial officer
>Deference by Courts to administrative bodies may be too great
>Typically, Federal Courts must give deference to findings of State Courts
>If suit is based on federal law, determining if there is issue preclusion from State findings depends on intentions of legislature in allowing Federal Review
>General common law rule is that State administrative or court findings have preclusive effect. However, examination of statute can find intent to prevent issue preclusion.
IV. COLLATERAL ATTACK AND RELIEF FROM JUDGMENT
>Collateral Attack: how do you get a judgment undone to avoid consequences?
-Same Case=Direct Attack (Appeal, Rule 60b)
-Attacking Case in Different Case=Collateral Attack
>Full Faith and Credit Clause requires each State to give to judgments of other States the same effect that the judgment would have in the State rendering the judgment.
>Only issue that Courts may examine from judgments is jurisdiction (personal or subject)
– personal jurisdiction only if issue was not litigated or waived in first action
Lack of Jurisdiction (Des Moines Navigation)
>If plaintiff and defendant are from same state, Federal Court does not have jurisdiction
>Court’s final adjudication of issue has binding effect if it determined it had jurisdiction
>Jurisdiction is issue like any other for Court to determine; decision final even if wrong
>Failure to bring up issue of jurisdiction results in implicit decision on jurisdiction or issue being conceded by defendant
Statute later found unconstitutional (Chicot County Drainage)
>If a Court determines an issue based on a statute later found to be unconstitutional, the determination is still valid if the constitutionality issue was not litigated originally
Full Faith and Credit Clause; Decisions of Other States (Durfee)
>Full Faith and Credit clause requires every state to give another State’s judgment at least the same res judicata effect it would have in the State rendering judgment
-including judgments of jurisdiction if fully litigated
>Textbook Rule: Decisions by Courts without jurisdiction are subject to Collateral Attack, BUT Collateral Attack on issue is highly unlikely if there was chance to litigate
A Rare and Narrow Successful Collateral Attack (In re Providence)
>rare successful collateral attack; due to obvious unconstitutionality
