CIVIL PROCEDURE II OUTLINE
PLEADINGS
Knight v. DeVries, Jones, and Associations
Accrual of a cause of action- set of facts and legal theory
Ex: malpractice claim – negligence
Thiel v. Central State University
Rule 8: concise statement of jurisdiction is required
Doesn’t have to match the exact language of Forms 2 and 4
Adams v. City of Bethany Springs Police Dept.
Purpose of pleadings is to put the D on notice
Each paragraph is to contain at least 1 set of facts
Welcome to America, Inc. v. McFarland
State a claim: 12 (b)(6)- logical inference taken in light most favorable to D
Motion to dismiss and summary judgment- identical standard, look at all material as it then stands in light most favorable to the D, just at a different time
Regents Hotel Corp. v. Heritage Hotel Corp.
12(e)- more definite statement
Not grant motion if facts coupled w/ body of law could justify relief
A disfavored rule b/c parties have discovery
All pleadings are vague-they’re just to put the D on notice
MCD Media Inc. v. Tiger Broadcasting Inc.
Any statement in a pleading is privileged
Motion to strike- 12 (f) no reason for statement to be included in the document
Get rid of scandalous and inappropriate material
Not necessary to cause of action and could be deemed as defamatory
Rule 11 provides sanctions for violations
Davis v. Elkins
Denials/defenses
Denial in pleading: if you deny you force the P to plead
Affirmative defense raised at trial- burden of proof is on the D
Nature is “so what” not “I didn’t do it”
Can do both, don’t need to be consistent
SUMMARY JUDGMENTS
In line with Rule 1: just, speedy, inexpensive determination of every action
Not want trials if not needed
If motion is denied, then there’s a trial
Consider the pleadings, discovery, and disclosure
Similar to:
12(b)6- no legal claim stated
12(c)- resolving dispute prior to trial by moving for a judgment on the pleadings
55- default judgments
Rule 56(c): no genuine issue as to any material fact and movant entitled to judgment as a
matter of law
Rule 56(e): affidavit must be made on personal knowledge and opposing party must
respond showing a genuine issue for trial
Rule 56(f): If there may be evidence which hasn’t yet been obtained, the court can issue a
continuance
Celotex Corp. v. Catrett
The Supreme Court held that summary judgment was proper against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial.
No express or implied requirement in Rule 56 that the moving party support its motions w/ affidavits negating the opponent’s claim
The burden on the moving party is discharged by showing that there is an absence of evidence to support the nonmoving party’s case
Bias v. Advantage International Inc.
The agent said he’d get life insurance policy but he didn’t do it and Bias died. Not able to get policy b/c a cocaine user- his teammates witnessed him. But parents and coach say they didn’t know Bias did drugs.
Not a credibility issue- there is uncontradicted specific evidence of Bias’ drug use
There’s no issue of material fact
Summary judgment would be denied if any specific person said “I was there and didn’t see Bias do drugs”
APPEALS
More technical
Only 10-20% reversed
Great amount of discretion given to the trial judge
Very expensive
In trial court, must make an objection in order to raise it in appellate level- must
make a record through objections
exception- plain error, if you forget something really big the court of appeals will help you out- want proceedings to be basically fair
file notice of appeal w/in 30 days after final judgment
Rule 58(a): separate judgment rule- final judgment must be on a separate piece of
paper, gives a clear sense of filing
Who can appeal?
Losers
If P wins, cannot appeal on a different theory but can if they didn’t
get full relief
D can appeal what they lost
Can have a P and D both appeal the specific claims they lost on
Adverse and final judgment
Only appeal ultimate decisions not opinions
Doctrine of mootness- one may not appeal from a judgment when circumstances have changed in such a way that relief is no longer possible
Exceptions: P’s claim has been satisfied but the question is likely to recur and applying mootness would prevent the issue from ever being litigated
When can we appeal? Final Judgment Rule
After an adverse and final judgment 28 USC 1291
Ends litigation on the merits and leaves nothing but the execution of the judgment
Liberty Mutual Insurance Co. v. Wetzel
Trial judge thought it was a final judgment but not the Supreme Court
Rule 54(b): judgment on multiple claims or parties
May break it up for appeal if there is no just reason for delay
“when an action presents more than one claim for relief or multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all claims or parties only if the court expressly determines that there is no just reason for delay”
Major exception: 28 USC 1292
a) injunctions
b) judge can agree w/ appellate court to appeal liability before
damages entered
Judge made exceptions
Collateral order doctrine
Writ of prohibition
Writ of mandate
Interlocutory appeal
Injunctive relief
Lauro Lines v. Chasser
Here- motion to dismiss was denied
Cohen exception: for those prejudgment orders which finally determine claims of right separable from and collateral to rights asserted in the action and are too important to be denied review and too independent of the cause itself to require being deferred until the whole case is adjudicated
3 conditions: A) it must conclusively determine the disputed question
B) it must resolve an important issue completely separate
from the merits of the action
C) be effectively un-reviewable on appeal from a final
Judgment
Only occurs where the order at issue involves an asserted right, the legal and practical value of which would be destroyed if it were not vindicated before trial
*List on 649-650*
Attorney client privilege- not appealable in 6 circuits
Deny 24(a)- immediately appealable
Grant 24(b)- not immediately appealable
Remand order- not appealable
Protective order 26(c)- not immediately appealable
Injunctive relief- yes b/c 28 USC 1292(a)
TRO- not an injunction
Preliminary injunction- yes
Removal under 1443- appealable
Interlocutory appeals- don’t get b/c don’t ask
28 USC 1292(b): involves a controlling question of law
where there is substantial ground for difference of opinion and an immediate appeal would materially advance the ultimate termination of the litigation
mandamus and prohibition
only if relief is extraordinary
consider following factors:
the P has no other means of immediate direct appeal
the P will be prejudiced in a way not correctable
upon later appeal
the trial court’s order is clearly erroneous as a matter
of law
the trial court’s order suggests disregard of appellate
court precedent
other circumstances indicating usurpation of power
by the trial court
Which of these are final judgments?
Grant 12
claimants, you had better give notice
Class action shifts focus from client to lawyer- true
23a4, 23g
From damages to attorneys- 80% wrong
Focus on Ps damages
From litigation to settlement- 50% true
Lots of discovery
Phillips Petroleum v. Shutts – the 27,000 or so non-Kansas residents who received notice and did nothing had impliedly consented to jurisdiction
Passivity can make you a party to a lawsuit
DUE PROCESS REQUIREMENTS for class action to be binding on absentee plaintiffs:
no minimum contacts needed
absent plaintiffs must still be given notice which meets Mullane test
must be given opportunity to be heard and participate in litigation
absent plaintiffs must be provided with “opt-out” opportunity
absent plaintiffs must be adequately represented at all times by the named
plaintiffs
in Phillips, due process requirements were satisfied as to the absent plaintiffs
but Kansas law should not have been applied to all claims blanketly
this case only applies to cases for predominantly money judgments and says nothing about equitable relief
also says nothing about J asserted over a Def. class
SUBJECT MATTER JURISDICTION CONSIDERATIONS
Reach of Judgment – 23c3 – who is bound by the judgment
b1 or b2 action – judgment, whether favorable or not to the class shall affect:
anyone found to be a member of the class by the court
b3 action – judgment, whether favorable or not to the class shall affect:
those to whom the 23c2 notice was directed,
and those who have not requested exclusion (“opted out”),
and found to be a member of the class by the court
Fairness Hearing – required by 23e – Dismissal or Compromise – our champion has different interests than the members of the class at this point – so the court takes over
court must approve a dismissal or compromise
notice of the proposed dismissal or compromise must be given to all members of the class in a manner court directs
this is because the settlement may not be fair to all members of the class
Appeal – 23f
within ten days of an order of class certification, a court of appeals may in its discretion allow an appeal of the order granting or denying certification
an appeal does not stay the proceedings unless directed by district or appellate court
Class Action attorney’s fees
“common fund” doctrine – when money damages awarded, courts will award the attorney a fee taken from the common fund
other cts – start with appropriate hourly rate and adjust according to factors such as special risks and novelty issues
Supreme Tribe 1921
Only representative P needs to be diverse from D and vice versa
Not need complete diversity
Snyder v. Harris 1969
Bringing class action and diversity
Not aggregate individual claims to get to 75K
Need at least 1 party w/ claim exceeding 75K
Exxon-Mobile 2005
Section 1367 diversity and minimum amount
Rule 23 isn’t a disfavored rule
Small claims trail along as supplemental claims
Class Action Fairness Act CAFA 2005:
Usually not under this
Business friendly, not helpful for P
Need minimal diversity and 5 million in aggregate
Section 1332 d
Diversity claims
Section 1453
Special removal provision
Section 1715
Special notice provision
Ruling as to class certification is immediately appealable through an interlocutory appeal
Each and every member of the class is forever bound through res judicata
