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

Civil Procedure Outline – Carlson Fall 2015
1.       State issue
2.       Give Rules
3.       Arguments for each side
4.       Give conclusion
28 USC Sec 41: The thirteen judicial circuits of the United States are constituted as follows:
District of Columbia
District of Columbia.
Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island.
Connecticut, New York, Vermont.
Delaware, New Jersey, Pennsylvania, Virgin Islands.
Maryland, North Carolina, South Carolina, Virginia, West Virginia.
District of the Canal Zone, Louisiana, Mississippi, Texas.
Kentucky, Michigan, Ohio, Tennessee.
Illinois, Indiana, Wisconsin.
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota.
Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, Hawaii.
Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming.
Alabama, Florida, Georgia.
All Federal judicial districts.
US Constitution Article I, Section 8, Clause 9 – The Congress shall have Power To …constitute Tribunals inferior to the Supreme Court….
U.S.C.A. Const. Art. IV § 1 Section 1. Full Faith and Credit
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
28 U.S.C.A. § 133 § 133. Appointment and number of district judges
Trial Courts
District Court:
Has exclusive jurisdiction of all civil litigation up to 25,000 and also handles garnishments, eviction proceedings, land contract forfeitures, and other proceedings. For criminal cases the district court conducts preliminary examinations in felony cases and handles all misdemeanors where punishment does not exceed one year in jail, including arraignment, and sentence. Includes a small claims court.
Court of Claims:
Has jurisdiction limited to hearing claims against the State of Michigan
Probate Court:
Has limited jurisdiction to hearing cases of wills and administration of estates and trusts of deceased persons by personal representatives as well as guardianships.
Circuit Court:
Referred to as the trial court of general jurisdiction in MI because it has very broad powers. Has original jurisdiction in all civil cases involving more than 25,000; in all criminal cases where the offense involves a felony or certain serious misdemeanors and in all family cases and domestic relations cases such as divorce, paternity, juiv proceedings, and adoptions.
Municipal Court:
Civil jurisdiction is limited to 1,500.
Tribal Court
Case of the problem. US courts focus on the remedy of the problem. Appeal to US federal district court.
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
Due Process: 5th and 14th amendment; is a sliding scale: (a flexible analysis)
–          Elements:
(1)    No state
(2)    Shall deprive
(3)    Any person
(4)    Of life, liberty or property
(5)    Without due process of the law
ü  Opportunity to be heard in a meaningful time and manner
ü  The right to hear the case against you (notice giving)
ü  Present argument and put forth evidence
ü  To be heard by an impartial decision maker
ü  The ability to confront witnesses and to hear the case against you
§  Broad Approach: Goldberg v. Kelly
o   2 welfare programs, neither required hearings in order to terminate benefits to recipients, J. Marshall: welfare recipients are destitute, their loss of this property would be significantly worse for them.
§  Set the parameters for procedural due process.
§  Property: gov pensions, licenses, gov housing, are all forms of property that require pre-deprivation procedural protection.
§  The Due Process Clause of the 14th Amendment to the US Constitution requires a full evidentiary hearing before a recipient of certain government benefits is deprived of such benefits. 
§  Goldberg is a balancing test
o   What interests are afforded due process protection and what processes must be afforded protection to protect those interests
o   Sliding scale
§  Narrowed Approach: Mathews v. Eldridge
Eldridge received SSD benefits, every 4 years was sent a form to complete, they would terminate his benefits, he would go to an in person trial, they would see their mistake and reinstate his benefits.  They terminated again, he sued.
§  Holding: Due process doesn’t require a Goldberg-type hearing prior to the termination of social security disability benefits on the grounds that the worker is no longer disabled.
§  SSD are no longer disabled and thus not destitute.  Form is good enough indicator, by doctor, who is impartial.
§  Ct sets forth 3 factors determining whether an individual received process that is due:
(1) The private interest that would be affected by the official action (2) the risk of erroneous deprivation of such interest through procedures used and the probable value of additional safeguards and (3) the governments interest, including administrative and fiscal burdens that additional procedures would entail.
o  Courts use this cost benefit analysis to try to determine if minimum values will be met in
      the case.
 Why Litigate
To get remedies [aim to ‘cure’ a legal harm]. 2 groups of remedies—[Legal Remedies] (1) substitutionary remedies—those which seek to provide the P w/ a reasonable substitute [Compensatory damages—lost money, pain and suffering OR liquidated, statutory or punitive {meant to punish} and [Equitable Remedy] (2) specific remedies [return of product, specific performance, etc).  Injunctions are by the most prevalent form of equitable relief. 
Most are (1). Sometimes – If not (1) then you get (2).
Courts sometimes refer to the requirement that a P seeking an equitable remedy [usually an injunction] demonstrate that the legal remedy [usually damages] is inadequate.  Other times courts will insist that the P demonstrate is irreparable, meaning that money damages will not provide adequate remedy.
Declaratory Relief: Under federal Declaratory Judgment Act, 28 USC 2201 and 2202 parties in such circumstances may now seek from a court a declaration for their rights without seeking or being in a position to seek any coercive relief such as damages or injunctions. Governed by Rule 57. (the because clause).
Litigation Finance
Rule or Practice
Who pays the Fees?
Resulting In/Disincentives?
“English Rule”
Loser Pays winner’s fees
Encourages: strong but low damage cases
Discourages high-cost “law reform” suits
“American R

y received otherwise. More concerned with allowing meritorious cases then removing nonmeritorious cases. These can be done away with in discovery and sum judgment.
v  Bell Atlantic Corp v. Twombly: Plausibility Test
o   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)
v  Iqbal: Narrowing Plasibility Test
1)      Legal conclusions are insufficient in a pleading
2)      Court decides if sufficient claim stated based on factual allegations and their judicial experience and commonsense and determine if a plausible claim for relief has been shown
o   FP: Only factual allegations have to be assumed to be true
o   Plausibility Test: asks for more than sheer possibility that D acted unlawfully to survive motion to dismiss. Plaintiff has to plead more than a bare recital of the elements or assert that the D harmed him.
o   Court doesn’t define plausible, only says it’s more than conceivable or speculative.
o   Court says they are not overturning Conley’s interpretation of Rule 8(a), they say that Conley court never meant “no set of facts,” because Rule 8 requires a showing “that the pleader is entitled to relief”, which means you have to show facts to show that you have a claim in which you are entitled to relief
o   Two step process for determining if complaint is sufficient:
§  Distinguish factual allegations from legal conclusions (only factual allegations have to be assumed to be true).
§  Decide based on factual allegations and their judicial experience and common sense whether a plausible claim for relief has been shown.
o   Compare Iqbal v. Conley
§  Iqbal standard relies on more facts, more details of the facts underlying the allegations, more context specific, requires an examination of the substantial elements of the claim and the facts supporting them.
§  Under Conley, you had to state the elements, but in Iqbal you have to show that you actually have facts to support these elements (can’t just say he harmed me).
§  Courts still have to assume that factual allegations are true BUT now, have to distinguish between facts and conclusory (legal conclusions) statements.  This case still allows courts to believe facts as true BUT allows court to state that allegations are actually legal conclusions and therefore refusing to see them as true.
§  ***Complaint has to give enough facts to hold a story together. You can’t say this is what happened; you have to show how this happened.