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

 Civil Procedure II
Prof. Petruccelli – Spring 2013
I.         The Civil Action
A.       Forms of Action
·         Central Q:  what is the proper business for the Court? 
·         Affected by history as courts of equity & courts of law tried to grapple with forms of action & remedies.
·         Under English common-law writ system, if plaintiff used incorrect action (writ), the action would fail & no right to recover
·         No pleading in the alternative (yet)
·         As courts tried to fit cases into the proper writ, disagreements arose, leading to the (painful & slow) development of the legal system
·         Modern F.R.C.P. 2 is a modern attempt to move from different actions to a single one (“There is one form of action—the civil action.”) – GP says:  not entirely successful.
·         Ancient forms of action – the common law legal and procedural devices associated with a particular English writ, each of which had specific forms of process, pleading, trial, and judgment
·         See also – Account, Assumpsit, Covenant, Debt, Detinue, Replevin = the 9 personal actions ID’d by Maitland
                                        i.            Trover – (Gordon, Swift): A common law action to recover for conversion of goods (wrongful seizure of property), often held by a “bailee” who has a duty of “ordinary care” of the thing bailed (property is “in bailment”)
o    First issue: who has the right of possession right now?
o    Trover requires BOTH the right to possession AND the right to ownership, at the time of the conversion.
§  Property owner does not have right to possession (property interest) if leasing it to someone else, until the bailee’s right “determines” (ends).
§  “Case” is the only action available to the original property owner, if the property converted or damaged is currently in bailment (no trover b/c no possession; no trespass b/c not direct to owner).
§  Bailee never has the right of ownership, so bailee cannot plead action in trover; only case or trespass.
§  Although owner’s possessory right (property interest) is lost during a lease, violation of the lease by the bailee will revert the interest back to the original owner, who can bring suit for
o    damages generally = full value of the property converted, at the time of the conversion.
o    Trespass action (in alternative to Trover) requires right to possession
·         Trespass and Case – (Scott, Day, Leame, Williams) – briefly, here are the triggers, charted out:
Willful / Intentional
Direct (Immediate)
Case OR Trespass
Indirect (Consequential)
Think:  Who has the BOP?  Show Actual Harm element?  What damages are available & how figured?  Punitive damages ok?
In other words:
o    Trespass:  cause of action arises from acts that are direct AND willful
o    Trespass OR Case:  cause of action arises from acts that are direct AND negligent
o    Case:  cause of action arises from acts that are indirect, regardless of intent
§  Case became an all-purpose action for injurious acts when other writs didn’t fit.
                                       ii.            Trespass – a common law action to recover for DIRECT injuries resulting from an unlawful act committed against the person or property of another.  Comes in several varieties:
o    Trespass de bonis asportatis – action for damages to the π’s goods, which had been “carried away” by ∆.
o    Trespass quare clausum fregit – action for damages when ∆ physically intruded onto the π’s land by “breaking the imaginary close” that represented the boundary line surrounding the property.
o    Trespass vi et armis – available where the claimant said s/he had suffered personal injury as a result of the defendant’s direct force (misconduct)
o    Characteristics:  Quasi-criminal.  No proof of actual harm needed.  No proof of fault necessary.  ∆ has BOP.  Punitive damages OK.
                                      iii.            Case – a common law “catch-all” action to recover for any combination of acts EXCEPT those that are willful AND direct (those acts have to be brought in action for trespass).
o    Characteristics:  Quasi-contractual.  Proof of actual harm needed.  Proof of fault required.  π has BOP.  No punitive damages available.
ð  Gordon v. Harper (1796).  CJ = Lord Kenyon – π Gordon is not entitled to recover in an action for trover b/c he has leased property (furniture) in a house to a bailee (Biscoe) for a certain time, thus parting with his right of possession during the bailment.  Therefore, π has only a reversionary interest until the end of the term.  The furniture was seized by ∆ Sheriff Harper to sell & satisfy a money judgment against Borret (by Broomhead’s estate, who makes out like a bandit here).  The furniture once belonged to Borret, but had been sold by Borret to Gordon prior to the lease agreement between Gordon and Biscoe. 
RULE:  Trover requires BOTH right of ownership AND right of possession at the time suit is brought. 
§  Action in “case” is the only remedy for an owner seeking to recover for an injury done to a thing bailed during the continuance of the bailment. 
§  Biscoe (bailee) can bring action in trespass against ∆ Harper as “wrong-doer.”  At the termination of the lease, π Gordon can bring an action in trover against Biscoe for not returning the property that ∆ Harper seized, so it is right that Biscoe should recover now from Harper in order to satisfy his liability in the future case. 
§  Sherriff could have indemnified himself, for protection from liability if he seized the furniture (wrongly) at the behest of Broomhead.
ð  Eliphalet Swift v. Royal Moseley (1838). π Swift can maintain an action for trover against ∆, and could have maintained trespass against bailee.  Jirah Swift (bailee), to whom π Swift leased a farm with animals, was under a bailment agreement that the stock was to remain on the farm unless sold or taken off with π’s consent.  Bailee sold some of the animals and then absconded, so π could not bring case against the bailee.  However, ∆ knew bailee had no right to sell the stock to ∆ and he purchased them anyhow, below their value.  By selling the stock (a wrongful act under the lease), Jirah forfeited his possessory right, and revived that of Swift.  
RULE:  Bailee’s right of possession terminates when he puts the thing bailed to a different use than agreed upon.  The right of possession reverts to the original owner, who can maintain an action in trespass against the former bailee.
§  However, if the goods were not sold, but damaged in the course of the agreed use, π cannot bring trespass or trover against bailee during the lease period – only case.
FURTHER, if the purchaser of the goods knows (scienter) bailee had no right to sell the goods (ie., not a purchaser in good faith), the owner of the goods can maintain trover against the purchaser.
B.       Law and Equity
C.       The Modern Civil Action
ð  CompuServe v. Cyber Promotions
ð  Hurn v. Ousler – US Supreme Court, 1933, J. Sutherland – The federal courts have jurisdiction; this claim should have been considered on its merits. The claims of infringement and of unfair competition are not separate causes of action, but are different grounds asserted in support of the same cause of action. Thus, the lower courts did not err in dismissing petitioner’s claims of unfair competition, but they did so for the wrong reason.  The courts had jurisdiction, and the claims should have, instead, been dismissed on the merits. = Same result, different reasoning.
II.        Finality
A.       Res Judicata and Collateral Estoppel
ð  Patterson v. Saunders  (1953).   VA. Supreme Court.  2d suit is barred by RJ. Although the 1st suit was only against 2 of the defs named in the 2d, the additional defs were privies to the first suit. The legal rights of the defs in the motion for judgment (2d suit) are so identified in interest that each has the right to invoke the proceedings in the chancery cause (1st suit) in bar of this (2d) action.
RULE:  a matter once adjudicated by a court with jurisdiction may be relied upon as conclusive upon the matter between the parties or their privies in any subsequent suit.  A final decree, where no appeal is taken, is binding upon the litigants.
*Dissent – The inquiry must be as to the questions actually litigated and determined in the original action, not what might have been thus litigated and determined. The court’s holding here gives too much scope to RJ. (BAD)
ð  Keidatz v. Albany  (1952).  CA Supreme Court – π Keidatz entered into a contract with ∆ Albany for the purchase of certain property.  In a prior action, Keidatz brought suit against Albany to rescind the contract b/c defects in construction.  Court sustained a demurrer to 2nd amended complaint and gave Keidatz leave to amend, but π failed to amend.  Court entered judgment (costs) for ∆ and π made no appeal of the judgment.  Instead, Keidatz brought this action seeking damage$ for fraud against Albany, alleging that Albany knowingly made false representations regarding the value of the property to induce Keidatz to purchase the property. Albany moved for summary judgment on RJ (judgment entered on demurrer in the prior rescission action precluded this one). At trial, the court granted Albany’s motion for summary judgment. Keidatz appealed and won.
RULE:  Judgment on a demurrer does not bar a subsequent suit under a different theory, WHEN new facts are alleged that would have cured the fault in the initial pleadings.  A judgment entered on demurrer does not have such broad res judicata effect as one entered after full trial on the merits. 
GP says:  This case = an anomaly; gives too little effect to a judgment, too narrow a scope of RJ.  (BAD)
ð  Bernhard v. Bank of America  (1942). Cal. Supreme Court – π Bernhard brought an action as new administratix of an estate to hold ∆ Bank of America liable for recovery of bank withdrawals not approved by decedent.  BoA (here raising RJ defense) was not a party to the prior suit, where it was determined in probate that π had no ownership in the contested funds b/c they had been given as a gift to the previous executor.
RULE:  RJ bars a second action where the party against whom RJ is raised, though litigating the same right, appears in different capacities in the two suits; and the party raising the RJ affirmative defense was not a party to the first suit. 
Even though there is lack of privity or mutuality of estoppel, the ∆ is not precluded

fect. (5) Nope:  Prior judgment hasn’t been reversed.  Lubben was brought in accord with Lane, but is not BASED on Lane.  So, vacating Lane has no bearing on Lubben.  This rule does not apply to the overruling of a precedent.  Upon court granting motion to dismiss govt’s appeal, that decision became final.  Also, Board could have, and still can, comply with conditions.  (6) Nope:  Any other reason:  b/c gov’t failed to appeal Lubben, no dice.  There is no injustice that justifies relief from the injunction.
RULE:  60(b)(6) (residual clause) is not a substitute for an appeal.
ð  DeWeerth v. Baldinger  – 2d Cir. Court of Appeals, 1994- The dist ct was not barred from considering DeWeeth’s motion for relief from the final judgment, but the dist ct did abuse its discretion in ordering relief from the final judgment (which is an error of law).  After Guggenheim, the SOL (action in replevin) with a good-faith purchaser for value doesn’t run until AFTER the purchaser receives notice that the property is not hers AND she refuses to return it (rightful purchaser must bring action w/in 3 years).  Thus, Baldinger doesn’t have to give the painting back. DeWeerth’s R. 60(b) motion fails.
RULE:  A subsequent “change” in the law (Guggenheim precedent re: reasonableness in efforts to locate art) is of no help to π.  There won’t be countless do-overs.  GP thinks the DC punted in explaining the extent of the abuse of discretion that supposedly took place here.
ð  US v. Beggerly  – US Supreme Court, 1998, CJ Rehnquist – The “independent action” may have survived at the end of Rule 60 because the drafters of the FRCP didn’t know what they were abolishing and were afraid to get rid of it (for an old-school instance of “independent action,” see Courtney v. Glanville – independent proceeding to get out from under the judgment re: the jewels!).   Today, the “independent action” for relief from judgment – still exists, rarely used.  If you can bring the R. 60 motion, though, you probably can’t bring the independent action.  The independent action is reserved only for those cases of injustices which are deemed sufficiently gross to demand a departure from rigid adherence to the doctrine of RJ.  Equitable, in origin, with purpose of preventing a “grave miscarriage of justice.”  We already had equitable tolling built into the statute, and we’re not going to add more equitable tolling on top.  Just because the document was in the national archives, doesn’t mean that the government should be held to account for not doing the ∆s discovery for them.  Unless you can WIN in the face of a system that favors finality AFTER you get back into court under a motion to get relief from a final judgment, you’re not going to get anywhere.  So don’t bother unless it’s earth-shattering and is an EXTRA element of injustice.
RULE:  The availability of evidence that would have caused the earlier suit to come out differently, is not by itself a sufficient basis to re-open a judgment, absent proof that some grave injustice would result by not re-opening the judgment.
III.      Personal Jurisdiction, Venue & Service of Process
Jurisdiction is the Court’s authority or power to enter a valid judgment.
For a judgment to be valid (and invulnerable to collateral attack) it must be issued by a court having legal authority to act upon the subject matter of the dispute and legal authority to bind the parties.
Collateral attack – means you start a second suit to challenge the judgment of the first suit. In collateral attack, you wait for them to come and get your property, but then you argue: “They can’t have my property! The first lawsuit wasn’t valid because they didn’t have jurisdiction!” Why use collateral attack from a strategic standpoint? It’s cheaper than hiring an out-of-state lawyer to argue on your behalf. If that state tries to enforce the judgment, they’ll have to try to enforce it in your state.
Fed. R. Civ. P.
o    4 (Summons)
o    4.1 (Service of Other Process)
o    5 (Service and Filing of Pleadings and Other Papers)
o    12(b) (Defenses and Objections—When and How Presented—By Pleading or Motion—Motion for Judgment on Pleadings)
o    12(g) (Consolidation of Defenses in Motion)
o    12(h) (Waiver or Preservation of Certain Defenses)