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



I. The Role of Lawyers in Civil Litigation

A. Mavis Wilson et. al. v. Houston Funeral Home (Handout)
Facts: P and D had a written k to provide funeral arrangements. No payment was required at that time. D said that the insurance policy would pay for the funeral. On the day of the funeral D took P against their will to the bank instead of the mortuary.

Complaint – Rule 3
Services 2 functions: (i) commences the action, and (ii) it informs D of the nature of P’s action. [Rule 8 – basic premise for federal pleadings.]

B. Types of Responses – 6 basic responses to the summons and complaint.

1. Defective jurisdiction, venue, or process. A D may challenge the court’s power or authority to render a valid judgment in the case on several grounds. [Rule 12(b)(1-5)]

2. Lack of a claim. A D may deny that the substantive law under which P sues gives P a legal right to sue D. [Rule 12(b)(6)]. D may also assert that P has failed to join a part whose presence is needed for the court to decide the dispute. [Rule 12(b)(7)]. Both motions assume the truth of the complaint’s factual allegations.

3. Negative Defense. D may deny the truth of the complaint’s factual allegations. [Rule 8(b)].

4. Affirmative Defenses. D may wish to assert defenses that may wholly or partially defeat the P’s right to recovery against D. [Rule 8(c)].

5. Clarification. D may respond that the complaint’s factual allegations are too vague, incomplete, or confused to enable D to formulate an appropriate response. [Rule 12(e)]. The court will want to consider whether D is merely seeking more factual details rather than factual clarification.

6. Defendant’s Claims. D may wish to assert his own claims against P (counterclaim) [Rule 13(a) and (b)], or another D (cross-claim) [Rule 13(g)], or a new party (third-party claim) [Rule 14].


I. Provisional Remedies – Rules 64 & 65

A. Preliminary Injunctions and Temporary Restraining Orders: The Basic Problem

1. Preliminary Injunctions [Rule 65]

William Inglis & Sons Baking Co. v. ITT Continental Baking Co. (pg. 364) – D was pricing the products below the federal statutes. P thought D did this because they wanted a monopoly. P is asking the court to grant a preliminary injunction to stop D. This should be available only when certain criteria are met.

Reasons for Preliminary Injunctions:
This will remain in place, and thereby prevent until the case is completed.
Freeze Assets, Lien on Property, certain action can or can’t be taken, property can’t be sold or transferred.

Two tests from Inglis to decide if preliminary injunction should be granted:
Test One
1. P will suffer irreparable injury if injunctive relief is no granted.
2. P will probably prevail on the merits.
3. In balancing the equities

es. Both statutes allow a private party to obtain a writ of replevin ordering state agents to seize a person’s possessions simply upon the private party’s summary ex parte application. The private party merely claims a right to the property and posts a security bond. Neither statute provides an opportunity for a hearing prior to the property’s seizure nor do the statutes require a hearing immediately after seizure, although Florida guarantees a hearing sometime after seizure. 3 judge district courts in both cases upheld the statutes’ constitutionality.
Rule: 14th Amendment due process requires that an opportunity for a hearing be given prior to the seizure of property.


The nature of the common law pleading system
Distinction between the kings courts and local courts – kings courts were only for specific claims
Sufficient interest to the king – variety of other limited specific claims
How a case was initiated – pleadings – if you are a defendant and you find out that you have been sued by a plaintiff – it doesn’t do you much good to get a piece of paper that is vague. You want to be able to gather