CIV PRO OUTLINE
Professor Vaughn, Autumn 2010
Subrin, Minow, Brodin & Main (Aspen 2008)
Rules being tested: 1 – 3; 7 – 13; 15; 18; 26 – 37; 41; 45; 53; 56 and 65
Section I. Introduction to Civil Procedure
I. Introduction to Civil Procedure
A. Elements and History of Due Process
ûFifth Amendment
§ “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy or life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
ûFourteenth Amendment
§ “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
ûThe Right to Be Heard
§ “No better instrument has been devised for arriving at truth than to give a person in jeopardy of a serious loss notice of the case against him and opportunity to meet it.” – Justice Felix Frankfurter.
Goldberg v. Kelly
Facts: Welfare recipients in NYC brought class action suit against state officials claiming procedure of terminating benefits without a hearing prior to termination was a violation of the Due Process Clause of the Fourteenth Amendment.
Holding: The Court stated that, although the requirement of a prior hearing involved some greater expense, and the benefits paid pending a hearing and decision likely could not be recouped, the State had some ability to minimize these increased costs by instituting procedures for prompt pre-termination hearings and skillfully using of personnel and facilities. The stakes were too high for the welfare recipient, and the Supreme Court determined that the interests in favor of a pre-termination hearing outweighed those against.
Reasoning: The fundamental requisite of due process of law is the opportunity to be heard. The hearing must be at a meaningful time and in a meaningful manner. These principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.
Matthews, Sec. of Health, Education & Welfare v. Eldridge
Facts: Eldridge brought suit against government officials claiming procedure for assessing a continuing disability without a prior evidentiary hearing, for the continuation of Social Security disability benefits, violated the Due Process Clause of the Fifth Amendment.
Holding: The Court found that Eldridge had not been denied procedural due process when he was not granted an evidentiary hearing prior to termination of his Social Security disability benefit payments. Procedural due process had been satisfied because respondent was not in as dire a position as that of a typical welfare recipient, and because of the myriad procedural safeguards of the process, including an evidentiary hearing before the denial of the claim became final. The public interest in limiting the procedures available was significant, given the cost of additional procedures.
Reasoning: The balancing test of Mathews mandated consideration of the following three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Section II. Remedies
Introduction
A. Definition: relief granted to redress a legal injury.
B. Types
1. Legal/ Equitable
2. Temporal: Prejudgment/Post-judgment
Pre-Judgment
Legal Relief: Attachment
Equitable Relief: TRO, Prelim. Inj.
Post-Judgment
Legal Relief: Damages
Remedies at Law
A. Prejudgment Remedies
1. Purpose: To assure that Df’s property will be available should Pl prevail; to preserve the status quo so that any relief obtained after trial is meaningful. Also as a strategy note, they can give momentum to winning side. Note, some consider these equitable remedies.
2. Role of Due Process: Due process is a protection guaranteed by the 5th amendment (state can’t deprive of property w/o due process of law) and extended to the states by the 14th amd. The “state action” in these cases involves the court procedures employed. The prejudgment cases establish at a minimum that some “due process” must be afforded in pretrial seizures of property. These cases also make the more general point that ALL civil procedure must be constitutional. But keep in mind that the Constitution is a floor here, and that the states and the federal government can require procedures above and beyond those minimally required by the Constitution.
3. Types
a. Garnishment: wages
b. Attachment/replevin: personal property such as a stereo or car
c. Lien: real property such as one’s home
d. Note 1, CB 101 points out that federal courts use state court seizure statutes
4. Rule/Standard: Where there is a dispute about payments on property, and the creditor believes that prejudgment seizure is necessary, i.e. exigent circumstances, states have two alternatives for fashioning procedures: (a) pre-seizure notice and hearing OR (b) Ex parte: immediate post-seizure hearing will be adequate if the seizure was made only after specific allegations made under oath from a person with personal knowledge, complying with a statute which narrowly focuses on the issues, and the writ is passed on by an impartial judicial officer who determines that the showing is sufficient before issuing the writ. The role of bond is still somewhat unclear as to whether it is legally required, but it would certainly seem an advisable requirement.
Fuentes v. Shevin
Facts: Fuentes brought action challenging the constitutionality of the Florida prejudgment replevin procedures under the Due Process Clause of the Fourteenth Amendment.
Holding: The Court found that the statutes’ prejudgment replevin provisions deprived petitioners of their property without due process insofar as they denied the right to prior notice and hearing before property was taken. Court noted that states had the power to seize goods prior to a final judgment in order to protect creditor’s security interests, but
and contracts for the appropriate measurement, and types of compensatory relief. Ex: Torts = medical costs, lost earning capacity, pain & suffering. The point is that each body of substantive law has tests or measures for the types of compensatory damages that are awarded for each body of law.
2. Nominal Damages: Definition/Purpose: A trivial sum awarded in recognition that a legal injury was sustained, or to vindicate a claim where no recoverable loss is established. Carey makes the policy point that our willingness to presume compensable injury reflects our values about the injury. Typically, the amount of nominal damages is $1.00.
3. Punitive Damages
a. Definition/Purpose: compensation in excess of actual loss for the purpose of punishing the defendant
b. Availability: Although jurisdictions vary considerably, generally must show some form of intentional, malicious, outrageous or willful conduct
1. Not available in Washington state unless specifically authorized by statute
c. Measurement: The factors considered are the outrageousness of the conduct, the defendant’s resources/wealth, and the purpose for the award
d. Note: Constitutional challenges have been mounted in recent years to punitive damages both in courts as well as state and federal legislative challenges. The CB at 130-131 discusses recent S Ct cases on punitive damages.
c. Enforcement of Damages Award: A judgment is an adjudication of rights and liabilities. Damages are not self-enforcing although ordinarily, defendants voluntarily pay damages. Where they do not, plaintiffs have a variety of options to collect the judgment: liens, post-judgment garnishment, and post-judgment attachment. To secure this relief, the plaintiff must discover the assets, and obtain a writ of execution. Even with these procedures, relief may still be unobtainable if the def’s assets are exempt from execution or if the def. has declared bankruptcy.
III. Equitable Remedies
A. Prejudgment Relief
1. Due Process: Due process concerns are apt here also, although many of them are implicitly addressed by the provisions of FRCP 65 which provides for notice, hearings, etc. in appropriate cases. The same concerns are present, however: accuracy, availability of relief, need for a hearing. Additionally, the requirement of a bond also attempts to deal with the possibility of error.
2. Purpose: To create a state of affairs that will best give effective relief to the parties when the case has been fully adjudicated on the merits. Alt: status quo
3. Types
a. Temporary Restraining Order: On order granted without notice or hearing until a hearing can be had to determine the propriety of injunctive relief. If entered ex parte, it expires within 10 days. See FRCP 65(b).
1. EXCEPTION: First amendment & Prior Restraints – must give notice (generally)
b. Preliminary Injunction: An order entered after notice and a truncated hearing. See FRCP 65(a). Generally expires at a set date or upon the court’s final decision.
