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Civil Procedure II
University of Maine School of Law
Petruccelli, Gerald F.





>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


>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



Direct (immediate)


Case or Trespass

Consequential (Indirect)



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


Issues: 1-Who has possession? 2-Who can be plaintiffs? 3-Who can be defendants?


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.


>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