Civil Procedure I Final Outline
Professor Heiser
Fall 2013
1. The 3 main purposes of the civil litigation process:
Resolve Disputes
Find remedies
Make Law
2. Distinction between substantive and procedural Law:
Substantive Law – The interaction between people and society (Ex. Constitutional Rights)
Procedural Law – Court ruling will govern litigation of the courts. (Ex. Detailed Rights)
3. Adversarial System:
Reflects the cultural values of our society
2 Principles:
1. Party Presentation
· Parties decide what content, not the court
2. Party Prosecution
· Parties more the action along, the court acts as a neutral decision maker.
4. Structure of the Court System:
Federal Court System
· US District Courts
i. Trial Courts; Courts of Limited Jurisdiction
ii. California has 4 districts
· US Courts of Appeals
i. California is the 9th Circuit
ii. You have a right for your appeal to be heard in the US Courts of Appeals
· US Supreme Court
You have no right to be heard in the US SC
US SC can grant or not grant “certiorari”
One must have a federal question to seek review of the US SC.
California Court System
Superior Courts
Main trial courts of CA; Courts of General Jurisdiction
Court of Appeal
Divided into geographic district (San Diego is in the 2nd District)
Supreme Court
You have the right to PETITION to be heard in Cal. SC
(If you have a claim that involves a federal statute you can file it in state court)
5. Judicial Remedies: “Define the nature and scope of the court-ordered relief available to the P”
· Plenary Judicial Remedies
o Awarded at the end of a law suit (after D has an opportunity to be heard)
o Types:
§ Compensatory Damages (Money)
· Designed to compensate the P for a loss
§ Punitive Damages (Money)
· Designed to punish D for “worse than negligent behavior”
· Must not be “grossly excessive” as to violate Due Process
§ Injunctions (Equitable)
· Court orders D to perform or refrain from performing a specific act
· Issued to prevent physical injury or threat of such injury
§ Declaratory Judgments
· Declares the legal right of the parties (without any other relief)
· Provisional Remedies
o “A judicial order designed to stabilize the situation pending the final disposition of the case or to provide security for the P.
o Awarded anytime during suit (while the suit is pending), and may be issued ex parte
o Types:
§ TRO (Equitable)
§ Preliminary Injunctions (Legal)
§ Attachment (prevent the destruction or liquidation of property)(Equitable)
o Advantage: Fast Disadvantages: Erroneous Deprivation; Possibly violating due process
II. Due Process:
1. Intro:
· Constitutional Amendments:
o 5th Amendment (Federal)
o 14th Amendment (State)
§ No person shall be deprived of life, liberty, or property without due process of law
§ NOTE: The Constitution does not define what Due Process of Law is, that is the job of the courts.
· Rules of Court:
o Federal Rules of Civil Procedure (FRCP)
· Statutes
o “Define the power of various courts to hear particular cases and the convenient forums for litigation”
2. Statute of Limitations:
· Time within which you must commence an action in court
· Accrual Point: When the time begins (all elements are satisfied and a cause of action can be pursued.)
o Accrual Date starts when the P1) knows of his injury and 2) know of its factual cause (U.S. v. Kubrick)
o The statute of limitations is not meant to be “fair” but a bright line rule.
· 2 Questions:
1. Accrual Date:
· Each jurisdiction can develop whatever law it wants to define the “accrual point”
2. Commencement:
· Generally, when the complaint is filed with the clerk
· Reasoning for Statute of limitations:
o Prevent the prosecution of “stale” claims that might lead to inaccurate outcomes
§ Protects people and the courts form their cases being injured by loss of evidence, witnesses dying, facts being forgotten, etc…
o Ensuring “repose” for the defendant by allowing her to move on with her life
o Encourages P to bring suit promptly
· California
o 2-year statute of limitations for personal tort liability in Medical malpractice.
o Accrual Point is when the P:
§ Knows of the Injury
§ Knows of the factual cause and
§ SUSPECT wrongdoing (not necessarily KNOW of wrong doing)
o The suspicion of wrongdoing is a necessary element for the accrual point.
3. Right to be Heard:
· Prior Hearing
o Procedural Due Process requires that there must be an evidentiary hearing prior to the termination of benefits/funds (Goldberg v. Kelly: Welfare benefits terminated w/out prior hearing)
o Due Process Requirements of a Pre-Termination Hearing: (Relevant & Timely)
· Right to bring counsel
· Right to confront and cross-examine witnesses
· Right to be heard at a meaningful time in a meaningful manner
· Timely and adequate notice detailing the reasons for a proposed termination
· Right to an impartial, unbiased decision-maker
· Right to present oral evidence
· Right to a written decision by decision-maker
o POLICY: When the interest of the individual outweighs the interests of the state, Due Process law come into effect
· Balancing interests:
· Individual Interests: “Brutal Need”
· State Interests: Keep finances in balance
o Exception: Due Process does not alw
tential injuries to protect against wrongful attachment
§ No way to insure without a bond that D has a reasonable remedy
§ Typically double the value of the goods being seized
5. Comprised of uncomplicated facts that can lend itself documentary proof.
· Rule 65, Federal Rules of Civil Procedure (FED. CASES ONLY)
o Preliminary injunctions:
§ Must notice the adverse party
o TRO:
§ Can be without notice to adverse party (if):
· Reviewed by a Judge not a clerk
· Bond is be posted by P
· Application for TRO or Preliminary injunctions by P
o Based on specific facts from someone with first hand knowledge
· Immediate post deprivation hearing is
o TRO is good for 14 days and renewable for another 14 days
o Motion may be dissolved within 2 days notice
5. Questions:
· What is the significance of the Goldberg case?
o The SC’s interpretation of due process (requirements of due process)
6. Attack Plan:
1. Which law imposes duct process requirements on the fed. Gvmt? State Gvmt?
o 5th (Fed) & 14th (State)
2. Why is there a due process question in pre-judgment attachment cases?
o There has been a deprivation of property by the state or Fed. Govt.
3. What test should be applied when inquiring whether or not the taking of property violated DPC?
o Modified Mathews Test
4. What case helps unfold the due process requirements for a pre-termination hearing?
o Goldberg v. Kelly
5. What case helps unfold the due process requirements
III. Cost of Litigation:
1. Public Costs
· Involuntary Costs of the courts
o Relatively low
§ Filing fees, service fees, notice of appeal, etc.
o Awarded to the wining party
§ Winner has to pay for the losers court costs
o Courts are passive
§ The parties do most of the work
2. Private Costs
· Attorney’s Fees
o General American Rule: Each party pay for their own attorney’s fees; Win or Lose.
§ EXCEPTIONS:
· Contract (Ex. Renter’s Lease)
· Statute (Fee Shifting)
o Fees are not added into the injunction award
§ EXCEPTION:
· Small claims court
o RULE: “Courts may approve (Civil Rights) settlements that include fee waivers”(Evans v Jeff D.)
