Select Page

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

Civil Procedure II
Spring 2014
Chapter 1
The Civil Action
A.            The Forms of Action
1. Trover
A common-law action for the recovery of damages for the conversion of personal property, the damages generally being measured by the property's value.
·         Gordon v. Harper (FURNITURE CASE): Plaintiff sued Defendant in trover for furniture. Plaintiff leased a house to A with the furniture in question in the house. Defendant, the sheriff, seized the goods and then sold them in an executed judgment against B, who had previously sold the goods to Plaintiff prior to Plaintiff leasing the house.
o    Rule: In order to maintain an action in trover, the party must actually have a present right to possess the property in question.
·         Swift v. Mosley (2 OXEN, 3 COWS, 9 SHEEP CASE): E. Swift leased the land to J. Swift with animals on it. J. Swift sold the animals to Moseley, E. Swift is suing Moseley. J Swift ran away. (used all English cases and one from NH)
o    Rule: In order to recover the value of property in an action of trover, a party must have had both actual possession and a right to possession of the goods taken.
2. Trespass (Action) on the Case
At common law, an action to recover damages that are not the immediate result of a wrongful act but rather a later consequence.
·         This action was the precursor to a variety of modern-day tort claims, including negligence, nuisance, and business torts
Williams v. Holland (CARRIAGE CRASH – DIRECTNESS!): Williams suing Holland for hitting his carriage. Defendant had been racing his cart down the road. Williams carriage was damaged and his children thrown from the cart and injured. Williams brings a suit in Case. Defendants position is that he should have brought Trespass. There is legal precedent that he should have brought Trespass.
·         An action for bodily injury for a NEGLIGENT defendant could be brought in case because it is INDIRECT. If the injury was a direct consequence of actions, it could be trespass because the characteristic of trespass is DIRECTNESS.
3. Trespass: An unlawful act committed against the person or property of another; esp., wrongful entry on another's real property.
·         Trespass de bonis asportatis [Latin “trespass for carrying goods away”] A wrongful taking of chattels. This type of trespassory taking was also an element of common-law larceny.
o    At common law, an action to recover damages for the wrongful taking of chattels.
·         Trespass vi et Armis [Latin “with force and arms”] At common law, an action for damages resulting from an intentional injury to person or property, esp. if by violent means; trespass to the plaintiff's person, as in illegal assault, battery, wounding, or imprisonment, when not under color of legal process, or when the battery, wounding, or imprisonment was in the first instance lawful, but unnecessary violence was used or the imprisonment continued after the process had ceased to be lawful.
·         Trespass quare clausum fregit [Latin “why he broke the close”] A person's unlawful entry on another's land that is visibly enclosed.
Scott v. Shepard (SQUIB CASE): Two theories are advocated by the four judges:
(1)      A trespass action is maintainable if the injury is caused by an illegal act
(2)      A trespass action is maintainable if an injury is the immediate result of an action.
a.       There is difficulty in deciding whether an injury is “immediate” or “consequential.”
Leame v. Bray (SERVANT AND A CARRIAGE CASE): Carriage crash. Leame sued Bray for crashing into his buggy. Bray on the wrong side of the road, Leame is on the right side of the road. Action in trespass. Judges ruled a non-suit.
·         Needs to be immediate and willful. We don’t care which one it is. If its negligent it could be trespass as long as it was immediate. You can win a suit in trespass without any culpability at all.
‘Punch in the Nose Cases’
‘Log in the Road’
TRESPASS (back in the day)
B.            Law and Equity
Equity: a branch of law that developed alongside common law in order to remedy some of its defects in fairness and justice, formerly administered in special courts.
Court of Chancery: A court that dealt with issues of equity, not common law. Dealt with petitions seeking remedies other than damages – such as writ, injunction, or special performance.
·         Fraud, injustice, duress, unconscionability
Choses in action: The right to bring an action to recover a debt, money, or thing
J.R. v. M.P. (DEBT AND OBLIGATION): Defendant purchased certain debts from J.R. (P). The obligations were choses in action, which were only collectable by the plaintiff, and therefore worthless the defendant. Defendant obtained an injunction against the plaintiff requiring him to either surrender their obligation or release them from it. The plaintiff refused and was jailed. Plaintiff appealed.
·         A chancery court may only imprison a person in order to force him to give up an obligation. It does not have the power to nullify an obligation.
Courtney v. Glanvil (FLIM-FLAM MAN AND A JEWEL): Guys sells another guy a jewel that is way over-valued. Guy sues salesman in court of law and loses – so goes to a court of equity to get other judgment overturned on equitable grounds?
·         A court of equity CANNOT reverse or modify a judgment at law even to avoid injustice.
Judgment of James I: Kings bench says the COE is stepping on our toes, and James the I says the Court of Equity stays.
C.            The Modern Civil Action
“The Forms of Action we have buried, but they still rule us from their graves”
·         These cases are here to validate the insight that the forms of action rule us from our grave. Also to further the idea of how these forms of action came into being.
Federal Rules of Civil Procedure:
·         Rule 2 – One Form of Action: There is one form of action – the civil action
·         Rule 3 – Commencing an Action: The civil action is commenced by filing a complaint with the court.
·         Federal Rule 65: Injunctions and Restraining Orders
o    3 sequential possibilities for injunctive relief
§  Temporary Restraining order – first thing that happens
·         Can be given without a whole lot of basis
·         Don’t need a whole trial before its issued – can be given in a day
o    Ex

concluded that the remedy exercised by the District Court could only be created by an act of Congress.
·         The Supreme Court's decision resolved a protracted split among the federal circuit courts and will have a significant impact on debtor-creditor relations.
D.            Multi-Party Litigation Under the Federal Rules
Rule 13: Counter Claim and Cross-Claim
o    13(a): Compulsory Counterclaim – Must be made against an opposing party at the time of filing if:
§  It arises out of the transaction or occurrence that is the subject matter of the claim
§  It doesn’t involve adding a party over whom the court doesn’t have jurisdiction
§  Exceptions:
·         No jurisdiction
·         Already being sued by someone else
o    Rule 13(b): Permissive Counterclaim – A counterclaim that need not be asserted to be cognizable, usually because it does not arise out of the same subject matter as the opposing party’s claim or involves third party’s over which the court does not have jurisdiction
US v. Heyward-Robinson  (RELATIONSHIP): In order for a counterclaim to be compulsory, there needs to be a close and logical relationship between the claims. The facts in the situation need not be identical.
Rule 14: Multi-party
o    Defendant can bring in a third party who they believe is liable for part or all of the plaintiffs claims – so long as there is a relationship
§  Impleader: D brings in forcefully – their potential liability has to arise our of the same transaction (14a)
§  Interpleader: D brings in, but it is uncertain to whom they owe their debt – have to wait to see what the court decides
Barab v. Menford (IMPLEADING): Woman slipped on doormat at an Inn and sued the Inn. The Inn successfully impleaded the store they bought it from. The store unsuccessfully attempted to implead the manufacturer. A third party plaintiff must allege facts and reasonable relationship sufficient to establish the secondary liability of the proposed third party defendant.
7 – Pleadings Allowed; Form of Motions
8 – General Rules of Pleading
9 – Pleading Special Matters
10 – Form of Pleadings
12 – Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
15 – Amended and Supplemental Pleadings
17 – Plaintiff and Defendant; Capacity; Public Officers
18 – Joinder of Claims
19 – Required Joinder of Parties
20 – Permissive Joinder of Parties
42 – Consolidation; Separate Trials
A.            Res Judicata and Collateral Estoppel
Both are affirmative defenses under Rule 8(c)