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Civil Procedure I
Wayne State University Law School
Fox, Gregory H.

CIVIL PROCEDURE- FOX FALL 2010
I. INTRODUCTION-COMMENCING A LAW SUIT
A. The idea and the practice of procedure
1. Most first year law students deal with Substantive Law, the rules governing behavior in ordinary life: property, criminal law, torts, and contract.
2. Procedure is insiders law
a. Etiquette of Lawsuits
b. Procedure mirrors our most basic notions of fairness and the meaning of justice
i. Procedure protects process not just random outcomes
3. Some argue our systems obsession with permitting the adversarial airing of grievance has created a monster
a. Defenders argue that critics overstate the problem and that adjudication has proved to be a major force for social justice, economic growth, and political stability over the past two centuries.
B. Clients, lawyers, procedure, and strategy
1. Most episodes never go to court
2. In Pro Per or Pro se = Representing one-self
3. Two major consequences –consequences reflected through our legal system
a. Client and his lawyer have to divide responsibilities.
i. Common sense and codes of professional ethics agree that major decisions about the goals of litigation belong to the client.
ii. Questions of tactics belong to the lawyer
iii. Encountering Cases in Civil Procedure has two jobs
iv. What principle of law determined who prevailed in the situation?
v. Which lawyer for which side picked this particular fight and why-what tactical advantage was he/she hoping to achieve.
b. The system has to decide how to handle problems that arise from this division of responsibilities.
i. For legal representation to work, the legal system has to treat the lawyer’s choices as if they were the clients
4. What if the lawyer messes up? Who should be harmed? Three ways of solving this.
a. First, make the party who made the mistake suffer.
b. Second, is to tell the party suffering the harm that harm really isn’t so bad and that he should suffer the expense and inconvenience of allowing the client to fix the mistake
c. Finally, the system can allow client to amend claim and other part extra time to prepare a defense.
C. Incentive to Litigate
1. Litigation is expensive
a. Remedies (comprising the question of what courts can do to and for litigants) and access to justice (the question of whether barriers to litigation are too high or too low)
2. How much litigation is there?
a. Because of jurisdictional limits on the federal courts, about 98 percent of civil litigation in the United States occurs in State Courts.
b. 100 million cases each year, 55 million petty/traffic
c. 45 million non-traffic-ticket cases-1 for every 6.6 person could be thought of as serious
d. Of those, two categories (nearly 50-50 split)
i. Civil
ii. Criminal
3. Roughly speaking, civil litigation correlates with people and with economic activity
4. Dividing cases into tort/contract/Real Property
a. Torts account heavily for trials, contracts get default judgment because it is clear a lot of the time
b. No sort of case goes to trial at a high rate.
i. The national average hovers around 3 percent, with about 70 percent of those trials coming before a jury, 30 percent before a judge
c. When contract cases go to trial, most tried to a judge called a bench trial, while 85% of the tort cases that reach trial go before a jury
d. Trial times
i. Bench trial- 18 months
ii. Jury Trial- 22 months
e. Who wins trials?
i. tort trials 51 percent to 49 percent defendants win
ii. Contract trials, plaintiffs win about 62% of the time
f. Median recovery
i. In tort cases $37,000
ii. In contract, $48,000
D. COMPARATIVE TO GERMAN SYSTEM
1. American System is Lawyer Driven
a. Common Law System
b. Judges do almost nothing unless lawyer ask them to
c. Lawyers have a lot to gain
2. German System is Judge Driven
a. Civil Law System- Germany is just an example of Civil Law System.
i. Judge Driven
E. CRITICISMS OF THE AMERICAN SYSTEM
1. Deceptive Parties
2. Inequality of Wealth/quality of lawyers
3. Skewed Expert Testimony
4. The Cost
5. Less Efficent
6. Not many chances to get rid of the case
7. Inflated Discovery
F. FRCP: RULE 1
1. These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as state in rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
a. Rules Enabling act of 1934 United States Supreme Court promulgated the original Federal Rules of Civil Procedure in December 1937.
b. The Federal Rules enjoy “presumptive validity”
c. To help draft the original Federal Rules, The Supreme Court appointed an Advisory Committee on Rule comprising a panel of judges, attorneys, and law professors.
d. Because it is not a district court, the Rules do not apply to the United States Tax Court
e. The Rules apply only to the federal District Court, however they may apply equally to the Courts of Appeals.
2. Broad Objective of Rule 1
a. They are to be construed and administered so as to achieve the “just, speedy, and inexpensive determination of every action.”
G. FRCP: RULE 2
1. There is one form of action, the civil action
2. Complete Relief
a. When granting final relief, a court may grant all the relief to which the party is entitled (legal and equitable) regardless of the relief demanded in the pleadings.
II. Preserving the Status Quo and Ensuring Security for a Final Judgment
A. PROVISIONAL REMEDIES -WHY DO THEY EXIST?
1. A remedy that comes too late is useless- worse than useless if the client has incurred costs to obtain it
2. Provisional remedies-relief pending final adjudication of the dispute-are the legal system’s response to this need.
B. CIRCUMSTANCES REQUIRING PROVISIONAL REMEDIES
1. EXAMPLE- The threat or the possibility, that assets might be moved to a place that cannot be reached. A defendant might move all of their money to the Grand Cayman Islands.
2. EXAMPLE- Disclosure of a trade secret. A party is threatening to release the trade secrets of a company.
3. EXAMPLE- Exexecuitve non compete-clauses, non-compete clauses if you ever leave, you cannot work for a competitor
C. LEGAL TEST FOR GETTING A REMEDY
WILLIAM INGLIS & SONS BAKING CO. v. ITT CONTINENTAL BAKING CO. (P. 317)
Inglis, the owner of a bakery contends that the defendants are guilty of discriminatory and below-cost pricing (anti-trust) of their private label bread products. He sought preliminary injunction to force them to move prices up while he fights the battle in court.
Trial Court applied the test for preliminary injunction: RULE OF LAW:1) The plaintiff will suffer irreparable injury if injunctive relief is not granted, 2) the plaintiff will probably prevail on the merits, 3.) in balancing the equities, the defendants will not be harmed more than plaintiff is helped by the injunction, and 4) granting the injunction is in the public interest
HOLDING:Inglis was entitled to a rehearing for the question of relief based on an alternative test, “If the harm that may occur to the plaintiff is sufficiently serious, it is only necessary that there be a fair chance of success on the merits.”
1. BREAKING DOWN THE TEST
a. Irreparable Injury – more or less means the injury cannot be reversed by a monetary reward at the end of the case. It would not be sufficient for the jury or judge to award a sum of money. That would not do it. This is a subset of so called- Equitable Remedies- where a court is ordering something to happen.
b. The plaintiff will probably prevail on the merits-The burden imposed on the defendant will be what should happen anyway. Any harm defendant suffers is just a consequence of their illegal actions.
c. In balancing the equities, the defendants will not be harmed more than the plaintiff is helped
d. Granting the injunction is in the public interest.
D. PROCEDURE OF THE PERLIMINARY INJUNCTION
1. RULE 64 (P 1040)SEIZING A PERSON OR PROPERTY
a. If the provisional remedy that the party seeks involves seizing property, you must look at Rule64-Federal Courts look to state law.
2. INJUNCTIONS AND RESTRAINING ORDERS RULE 65 (P.1044)
a. 65(a)(1) Requires Notice
b. 65(a)(2) Court may consolidate hearing with Trial
c. 65(b) Cover Temporary Restraining Orders (TRO) WITHOUT NOTICE
Ex-Parte- Without notice or participation of the other side.
The danger of notice is that the very process of notice might trigger the defendant to take the exact action plaintiff was trying to prevent. RULE 65B- Temporary Restraining Order can be done without notice to the defendant.
d. 65(b)(2)TRO cannot exceed 14 days
e. 65(b)(3) Says the court must then schedule a hearing for a preliminary injunction at the earliest possible time taking precedence over all other matters. If plaintiff prevails at hearing, the TRO remains in effect as a preliminary injunction.
f. 65(c) says that a bond must be posted for preliminarily injunction or TRO, in case it turns out the court is wrong.
E. DUE PROCESS CONCERNS
1. Provisions remedies present a problem, A party has not had an opportunity to present their case. Those problems take us from Federal Rules to Constitutional Law. 5th Amendment and 14th Amendment, 5th ap

ry up front, parties are allowed to make logical inferences/ ie I don’t know enough information at this stage, but could have one of either of the following charges when I find more information. Eventually when you get to trial you need to choose one or the other.
ii. They have the effect of shifting fact collection from the beginning of the case to the middle of the case.
iii. TAKE THE FACTS AND SHOW HOW EACH WAS MET
c. Demand of relief sought (What is the remedy you are seeking? Prayer for relief)
i. The Request for Relief- Sometimes referred to as a prayer for relief (in latin Ad dammnum Clause)- basically specify what you want from the court or the jury if you win.
ii. Money Damages
iii. Some sort of order, or equitable relief
iv. Sometimes lawyers will put in a dollar amount. It may be difficult at the beginning to decide how much you should actually be entitled. At the state level there are actually rules against placing a dollar amount in the claim. Why? It may prejudice the jury.
2. Defenses; Admissions, and Denials RULE 8(b)
3. Affirmative Defenses (list of those available) RULE8(c)
4. Pleadings concise and direct; Alternative Statements; Inconsistency RULE 8(d)
5. Pleadings must be construed as to do justice RULE 8(e)
F. PLEADING IN PRACTICE
1. Every time a party wants in on the case a pleading must take place
2. MOTIONS ARE NOT PLEADINGS- They are requests
IV. RESPONDING TO THE COMPLAINT (FRCP 12)
A. CHALLENGING THE COMPLAINT
1. Modern functions of the plea
a. Pleading gives the plaintiff the first official opportunity to tell his story and gives defendant a chance for quick, inexpensive victory
b. By and large, disputes about the content of law are faster and cheaper to decide
HADDLE v. GARRISON (p.352) – Rule 8(a) & 12(b)(6)
District court dismisses the claim because they failed to state a claim for relief. Healthmaster said he was an at will employee, relationship can be terminated by either side at any time, without cause or without justification, so no civil rights §1985 claim. The motion that healthmaster filed: 12(b)(6)- Failure to state a claim upon which relief can be granted. Even if everything that said is true, there is no relief. What is wrong with the complaint? Defendants claimed he did not show he had loss. He had no future interest in future employment so he couldn’t have lost anything.
HOLDING: There was a loss to Mr. Haddle. Supreme Court says the 11th circuit is improperly bringing in other information. This case went back down to trial in Georgia, and the fourth missing element was no longer necessary so his complaint was good. TAKEAWAY FROM THE CASE: 1. The necessary allegations in the complaint have to track the governing law and 2. The governing law can change 3. If the governing law changes, Rule 8 requirements also change.
B. RESPONSES TO THE COMPLAINT
1. DO NOTHING
a. Not a good idea, court could rule with default judgment for the plaintiff
b. Why would a part choose to do nothing?
i. If defendant knows the defense is pointless, we know we will lose
ii. Defendant cant afford a lawyer
c. If a plaintiff is going to respond he or she must do so within 21 days of being served FRCP 12(1)(a)
2. FILE A PRE-ANSWER MOTION, ie 12(b)
a. More or less saying that there a reasons that have nothing to do with the factual allegations, why this should not be here/case should go out, this case should not be here. You can go ahead an ask the court to rule on these now.
1. lack of subject matter jurisdiction 12(b)(1)
2. lack of personal jurisdiction 12(b)(2)
3. improper venue 12(b)(3)
4. insufficient process (rare) 12(b)(4)
5. insufficient service of process 12(b)(5)