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Civil Procedure II
University of South Carolina School of Law
Samuels, Joel H.

Civil Procedure II Outline
 
Overview
 
Assignment 1
 
Glassroth v. Moore
o       Four Factors to determine whether to stay an injunction:
­       Applicant’s likelihood of prevailing on the merits of the appeal
­       Whether the applicant will suffer irreparable damage absent a stay
­       The harm that other parties will suffer if a stay is granted
­       Where the public interest lies
o       Ct. uses “ENJOINED and RESTRAINED from failing to remove” because this formulation is an easier way to determine that Moore does what he is supposed to do. This is an example of a prohibitive injunction.
o       This case lasted a year, showing that the court can manipulate the rules to expedite a case.
 
Rule 58: Entry of Judgment
o       Separate Document requirement
­       Exception: Order disposing of
§         Rule 50(b) judgment,
§         Rule 52(b) motion to amend or make additional findings,
§         motion for Rule 54 atty fees,
§         Rule 59 motion for new trial or altered/amended judgment
§         Rule 60 motion for relief
o       Time of entry requirements
o       Cost or fee awards
o       Request for entry
 
Rule 62(c): deals w/ Injunctions pending appeal
o       Court has discretion to deal w/ the injunction during the pendency of the appeal in any way it sees fit to secure the rights of the adverse party.
o       Special rule for district court of 3 judges constituted by statute
 
Assignment 2
 
Rule 1: Scope and Purpose of Rule
o       FRCP Scope of Application: to all civil suits in district courts
­       See Rule 81 for specifics
o       Construe and administer to secure just, speedy, and inexpensive determination of every action
 
Introduction to Civil Procedure [handout]: overview of the legal system and structure of a lawsuit
 
Pleading
 
Assignment 3: Pleadings and Forms of Pleadings
 
Rule 2: one form of action à “civil action”
 
Rule 3: Commencement of Civil Action à when complaint filed
 
Rule 7: Pleadings Allowed, Form of Motions
o       Pleadings are:
­       Complaint & answer
­       Counterclaim
­       Cross-claim
­       3rd party complaint
o       No other pleadings except court may order a reply to an answer (usu. affirmative defense) or 3rd party answer.
o       Motions to ct must be in writing, unless at hearing or trial. Writing must state particular grounds and relief/order sought. Must be signed pursuant to Rule 11.
o       Demurrers, pleas abolished
 
Rule 8: General Pleading Rules
o       Three Requirements for pleading w/ claim for relief:
­       A short and plain statement of grounds for ct’s jurisdiction
­       A short and plain statement of claim showing pleader is entitled to relief
­       A demand for judgment for relief (can demand relief in the alternative or of several different types)
o       Need to assert

relief can be granted
§         12(b)(7): failure to join a Rule 19 party
 
Assignment 4: More Pleading
 
Rule 9: Pleading Special Matters
o       Congress has enacted a Heightened Pleading Standard (HPS) to the following:
­       fraud, mistake, condition of mind must be stated w/ particularity
­       Special damages must be specifically stated.
 
§ 1983: cause of action against state officials or state body “under color of state law” for violating constitutional rights; these cases award attorney fees if π wins.
 
Leatherman v. Tarrant County
o       Issue: Is there a HPS in civil rights cases alleging municipal liability under § 1983?
o       Holding: No
o       Rationale: HPS not consistent w/ liberal system of notice pleading in FRCP. Any application of HPS must be found in the Rules. There is no such exception for § 1983 cases.
 
Pleading Inconsistent Facts & Alternative Theories
 
McCormick v. Kopmann (π pleads inconsistent counts)
o       Issue: can a party plead inconsistent counts in the alternative?
o       Holding: Yes
o       Rationale: Liberal rules
Rule 8(e)(2): π and ∆ may plead in the alternative