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

Civil Procedure A
Fall 2014
Provisional remedies
If a provisional remedy is allowed in the court’s state, it is permissible at any point of the lawsuit.
64(b) examples (not exclusive):
1.      Arrest
2.      Attachment
3.      Garnishment
4.      Replevin
5.      Sequestration
6.      Other corresponding or equivalent remedies
Temporary restraining order—65(b)
Preliminary injunction—65(a)
Notice required?
65(b)(1)—No, can be given ex parte.
65(a)(1)—yes, notice required.
65(b)(2)—14 day maximum, but can be extended for “a like period” if there is good cause or if the adverse party consents.
Until the adverse party wins. Or if the movant wins, it can become permanent.
65(d)(1)—TRO/PI must state the reasons for issuance, the specific terms, and reasonably describe what activities are restrained/required.
65(d)(2)—TRO/PI binds the parties, their officers/agents/employees/attorneys./etc., and anyone acting in concert with those just named.
Tests for granting
65(b)(1) provides two stipulations for granting:
1.      If specifically shown that “immediate and irreparable injury” will result, and
2.      If “the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.”
TRO easier to obtain, so good strategy is to go for TRO first and then move for PI.
Winter v. NRDC: plaintiff must establish that it is…
1.      “Likely to succeed on the merits…
2.      “Likely to suffer irreparable harm in the absence of preliminary relief…
3.      “The balance of equities tips in his favor…[AND] 4.      “An injunction is in the public interest.”
Winter dissenting test (Ginsberg)…
One moving for a PI assumes burden of demonstrating either:
1.      A combo of probable success and a possibility of irreparable injury, OR,
2.      That serious questions are raised and the balance of equities tips sharply in his favor.
This test essentially seems to separate 1/2 and 3/4 above.
Due process concerns
Due process requires that parties are given adequate notice and an opportunity to be heard when their rights are involved in litigation. If party does not meet the requirements for an ex parte TRO notice must be given before action is taken.
Two tests:
Fuentes v. Shevin—due process requires notice and chance to appear in court be given in a meaningful time and manner. Must be granted at a time when repossession/deprivation can still be granted—getting the stuff back later doesn’t remedy a wrongful deprivation.
Mathews v. Eldridge provides a three factor test in determining whether pre-deprivation procedure satisfies due process:
1.      “The private interest that will be affected by the official action
a.       Presumably meaning the importance/weightiness of the interest
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
3.      “The Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Reasons for seeking a PI/TRO
1.      To keep a trade secret from being disclosed
2.      Domestic abuse
3.      Business dealings
4.      Enforcement of employee contracts
5.      For when the ultimate trial remedy will not be able to undo damage
a.       E.g., damage to animals in Winter.
b.      E.g., money that multiple parties have claim to, but which is being spent by one party.
Issue checklist
1.      Will the party suffer irreparable harm if preliminary relief is not granted?
2.      Is notice required? Rule 65(b)(1)
3.      If notice is required, does it meet due process standards?
4.      If moving for a PI, apply both tests from Winter.
Commencing an action
“A civil action is commenced by filing a complaint w/ the court.”
Rule 3
Only these pleadings are allowed
1.      A complaint
2.      An answer to a complaint
3.      An answer to a counterclaim designated as a counterclaim
4.      An answer to a crossclaim
5.      A third-party complaint
6.      An answer to a third-party complaint
7.      If the court orders one, a reply to an answer
Rule 7(a)
A motion is a request for a court order. Must:
(A)   Be in writing unless made during a hearing or trial
(B)   State w/ particularity the grounds for seeking the order; and
(C)   State the relief sought
Pleadings initiate a lawsuit, such as w/ a complaint or defense. 7(a).
Motions ask a court to do something (e.g., compel discovery). 7(b)(1). Pleadings rules do not apply to motions.
Notice pleading: developed as a response to Field Code deficiencies.
1.      Greatly simplifies pleading
2.      Shifts discovery to a later phase, which helps meritorious cases get off the ground when all the facts aren’t yet available.
1.      Since SCOTUS helps draft, they’re unlikely to rule against a challenge to a FRCP.
2.      Sometimes simplicity can be too simple—e.g., a complaint does not have to state your theory (

” This allows the adverse party to know what act/acts is/are considered fraudulent. Stradford v. Zurich Insurance Co.
But, cases regarding conditions of mind can “be alleged generally.” (How would Ashcroft v. Iqbal come out under this? Another reason to take umbrage w/ that decision?)
An interesting example of a heightened standard is found in securities litigation, Private Securities Litigation Reform Act of ‘95:
1.      Complaint must specify each misleading statement, why it is misleading, and “if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which the belief is formed.”
2.      If alleging state(s) of mind, plaintiff must state particular facts that give rise to a “strong reference” that defendant had that state of mind.
Tellabs v. Makor Issues & Rights Ltd. (2007) was essentially the Iqbal of this area.
Courts may grant a party leave to amend the complaint to conform to Rule 9(b) requirements.
Allocating elements of a claim
Jones v. Bock—prison discipline case
Rule 8(c) and affirmative defenses
Substantive law points out the matters at issue; pleading rules provide the required level of detail; and it is also important to determine which party must allege an issue.
Determining who has the burden of pleading can in turn determine who has the burden of proof.
Allocating the elements of a claim is trickier when the claim stems from a statute. In the absence of specific statutory instruction, determining who has the burden of pleading is usually done through three steps (evidenced in Jones v. Bock):
1.      Does the statute suggest the burden of pleading is on one or the other party?
2.      Rule 8(c)—is the element listed as an affirmative defense or a defense clearly established by law?
3.      What is the legislative history of the statute? Silence is strong evidence that usual practices are followed. Generally, usual practice is “to not place too great a burden on pleadings,” which I think is intended to refer to the complaint—the burden is “usually” shifted to the defendant.