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Civil Procedure I
Wayne State University Law School
Carlson, Kirsten Matoy

Civil Procedure I – Carlson – Fall 2012
1. Overview of Courts and Introduction to the Process of Law
·         Three types of court systems in Michigan:
o   Federal [within constitution] o   State [within constitution] o   Indian Tribal Court [mediation/arbitration, outside connection](12 TBC)
·         Differences b/w Federal and Indian courts:
Federal Court
Peacemaker Court [Indian] Adversarial process
No attorney
Judges preside
No trial: guided mediation
Special rules as to who can talk and when they can talk
More open procedure, i.e. no time limit
Winner and looser
Purpose to find truth
Purpose to restore balance, reach an agreement/solution
SC  COA  Circuit Court  Municipal Courts [State] SC  COA  Court of Claims  District Court [Fed] Due Process:
·         These rules implement Article III, Section 2 of the Constitution, setting up the powers of the judicial branch
·         R1: the goal of FRCP: Broad objectives: secure, just, speedy, and inexpensive determinations of every action in proceeding (with exceptions stated in R-81)
·         Due Process: 5th and 14th amendment; is a sliding scale: (a flexible analysis)
·         5th amendment à limits power of FED gov’t to discriminate à will not deprive individuals of “life, liberty, or property”
–          Limits double jeopardy
–          Limits self-incrimination
·         14th amendment à limits power of STATE gov’t to discriminate
(1)   No state
(2)   Shall deprive
(3)   Any person
(4)   Of life, liberty or property
(5)   Without due process of the law
ü  Heard at meaningful time in meaningful manner
ü  NOTICE (right to hear case against you)
ü  Ability to confront witnesses
ü  Present argument and put forth evidence
ü  Claimant allowed to retain counsel
ü  Impartial decision maker who states reasons (at least orally)
Goldberg v. Kelly (1970) – P has due process rights under 15th amend to be heard, given notice, obtain council etc.
·         Goldberg’s welfare rights were terminated prior to being afforded the right to a pre-termination hearing
·         Violation of due process & equal protection clause – 14th amendment rights: life, liberty and property. Defendant has right to notice, to be heard, ability to form evidence, ability to obtain council {or represent yourself}, opportunity to confront witnesses
·         Due process deprived because no evidentiary hearing was held.
·         Cannot deprive those individuals who rely on welfare for there daily life
·         Written submissions unrealistic as not everyone can write professionally
·         Having hearing will not cost much more than current process
·         Having pre-termination hearing will give recipients better chance of making their point rather than after hearing terminated. Also having an oral testimony will allow government to see if person is lying or not.
Dissent [Justice Black] ·         Concerned about recipients getting wrongful benefits, thinks welfare is a benefit not a right to property. Concerned mostly regarding costs.
Matthews v. Eldridge (1976) – 3 factor test
·         Matthews’ (P) disability benefits were terminated without in person hearing. Only got benefits after in person hearing was granted.
·         Violation of the 5th and 14th Amendment to have the choice to be heard before termination of disability benefits
·         Due process evaluation 3 distinct factor test:
                                          i.      Private Interest affected by official action,
                                        ii.      The risk of depriving the party of their private interest erroneously through procedures used and/or procedural safeguards,
                                      iii.      Government’s interest: cost and administrative burden on gov’t that additional procedure would entail
Jerry Mashaw Essay – critique of utilitarian 3 factor test in Eldridge – too technical/based on costs
3 Alternative Theories [value based]:
a.       Individual dignity – how you perceive yourself and the fairness of the procedure. People are okay with loosing a case if they think the procedure is fair. The opposite is an alienating system.
b.      Equality – concerned that the procedures being used today excludes evidence that allows certain classes to have a fair trial (poor vs. rich). Procedural system should level the playing field.
In addition, that like cases be treated and decided similarly = equality.
c.        Tradition/ Evolution of the system – previous procedures are legitimate until they are overruled. [ie. Mullane- NY Bank Law. Ad in newspaper] We can rely on it but its not necessarily a reflection of what is best for our society today.
Differences between Goldberg and Matthews:
·   Goldberg focuses more upon the first rule in Matthews; government will be better at assuming risk. In Mathews there should be a cost benefit analysis and a more concrete outline of what the factors are. Less concern about allocating who is better to carry the risks of the mistakes from the beginning. Goldberg is more focused on a benefit analysis than the dignity value/participatory value procedure.
·   Justice Powell, sees Matthews as being factually distinct from Goldberg
·   Differences between welfare and social security benefits do not hold. Matthews is different from Goldberg as in this case financial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decisions. Also in this case written submission like the detailed questionnaire was sufficient
a) Deciding to Litigate
·   Federal Court Jurisdiction [must have subject matter and personal to hear case
o   Subject matter jurisdiction includes:
§  Federal question: 28 USC § 1331 – constitution, law and/or treaties, or
§  Diversity of citizenship: 28 USC §1332.
o   Personal jurisdiction:
§  Focuses on D who is being brought to court against his will.
§  P selects courts, D picks location of court
·         Difference between English + American Rules
Rule or Practice
Who pays the fees
Resulting incentives
Loser pays winner fees
Encourages strong but low damages cases
Discourages high cost law reform suits
Each party pays own fees
Encourages law reform suits
Discourages meritorious low damage suits
·         Insurance and Contingent Fees
Financial arrangement
Who is in the risk pool
How does cost get spread
Liability insurance
Other policy holders, some of whom will have accidents or other liability creating events
No accident drivers premiums subsidize those who have accidents
Contingent Fees
Other clients of that lawyer, some of whom will not recover damages
Fees recovered from winning cases subsidize costs of losing cases
·         How lawyers get paid:
o   Hour rate
o   Contingent fees:
§  Get paid a certain % of the winnings if win, if loose don’t get paid
o   Flat rate
o   Fee waiver:
§  Will get client to sign retainer agreement
·         How client can get counsel:
o   Legal aid
o   Subsidized legal services (form around a cause):
§  Brown v. Board of Education: striking down racial segregation in public education
§  Gatz v. Bollinger: Striking down racial preference in admission for undergraduate collage at U of M
o   Common fund:
§  Doesn’t shift fee between parties but requires all who benefit from recovery share costs
·         Trustees v. Greenough: P vindicated his interests and helped fellow bondholders, court held P can recover part of legal fee from fund his effort created
o   Contract:
§  Looser will pay winners fees
o   Common Law:
§  Other side pays fees when P has groundlessly brought suit
·         Chamer v. Nasco: Nearly $1mil in fees for party acting in bad faith
o   Statute:
§  Shift attorney fees in various circumstances
·         Blanc

         Easier access to federal court & discovery stage (equality +personal dignity: Mashaw)
·         Levels playing field between resource scare parties against corporations (David v. Goliath)
·         Allows more merit based cases to be heard b/c more influx of cases into system. Supports personal dignity: perceiving the court as fair (Mashaw theories)
·         Too many claims = system not as efficient as Rule 1 wants it to be
·         Cost of litigation would be heightened (Matthews v. Eldridge: 3 factor test and saving Gov’t interest: cost)
·         Allows more frivolous claims to be admitted
·         Corporations: spending funds to litigate frivolous cases
Bell Atlantic Corp v. Twombly (2007) – Overrules Conley Standard – Plausible
·         Loose standard (but different and maybe higher requirements) à even though the court said it didn’t apply a heightened pleading standard) (rejected “no set of facts” à S.Ct. re-interprets Conley from minimum standard to breadth of opportunity to prove what an adequate complaint claims)
·         Ps allege that Ds (local telephone companies) conspired to allow monopolies in areas. Dismissed as claim did not pass plausibility test as they were only bare, conclusory allegations.
o   FP: Claim must pass “plausibility test” from conceivable à plausible
§  Must state enough facts so it is “plausible on its face”, cannot be merely formulaic in the recitation of the elements of the cause of action but must have enough details so that the story “could” hold together (7th circuit)
o   Note: In Iqbal later, S.Ct. says “our decision in Twombly expounded the pleading standard for ‘all civil actions’” à Twombly was an antitrust case
Ashcroft v. Iqbal (2009)– Heightens Twombly Standard
·   9/11 Systematic discrimination conspiracy
Iqbal Standard:
·   Distinguish factual allegations from legal conclusions [based on courts experience and commonsense] o   Judge will consider alternative explanations for D’s conduct
o   Legal conclusions are insufficient and are thrown out
·   Only factual allegations have to be assumed true
o   Making a showing that the P is entitled to relief – facts must do this
·   Iqbal notice PLUS standard/plausible PLUS:
o   Notice to D
o   P presents legally sufficient claim
o   P prove factual bias for claim
·   Plausibility test:
o   Asks for more than sheer possibility that D acted unlawfully to survive motion to dismiss.
·   Judge from Twombly; Twombly standard if applied here would have made complaint sufficient to go through, Iqbal sets a slightly higher standard than Twombly.
Strengths/Weaknesses of Iqbal/Twombly Standard:
·   Efficiency: eliminates frivolous claims, corporations prefer this standard
·   Meritorious claims may get dismissed if they are not pleaded in accordance with Twombly/Iqbal standard
Notice Pleading Restoration Act – Attempt to reinstate Conley Standard
·   An initiative to restore pleading standard set out in Conley
o   Less necessity to have so many facts necessary for entitlement during the short and plain statement Rule 8(a)(2)
o   Sufficiency of Pleading in federal courts should allow access for those claims with factual support