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

Professor Fox – Fall 2015
Provisional Remedies: relief pending final adjudication of the dispute – responds to need for a remedy before it is too late
Must be granted or denied before case has been heard on the merits
Problem: judge must base their decision on incomplete info. & act w/o full adversarial exchange in a trial
Subject to examination under Due Process Clause – if gov’t denies citizen of life, liberty, or property interest, individual is first entitled to notice & the right to be heard
After the commencement of an action and until the time of final judgment, this rule provides means by which a claimant may seek an order of court to seize a person or property in order to secure satisfaction of the eventual judgment. Relief under this rule is infrequently granted and should be infrequently sought.
64(a) Remedies Under State Law—In General. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.
64(b) Specific Kinds of Remedies. The remedies available under this rule include the following—however designated and regardless of whether state procedure requires an independent action:
• arrest;
• attachment; (seizure of property)
• garnishment; (asking a 3rd party not to pay D money due to him b/c P has a claim on it)
• replevin; (seized goods provisionally restored to owner pending outcome of action to determine rights of parties)
• sequestration; and
• other corresponding or equivalent remedies.
à Fuentes v. Shevin (1972, U.S.) (provisional remedies – prejudgment replevin)
F: P purchased stove & stereo from D on payment plan. Needed it repaired. Dispute occurred. D filed action for replevin b/c P defaulted on payments. Before P served w/ complaint D obtained writ of replevin & sheriff picked up P’s stove & stereo prior to adjudication of the suit. P attacked prejudgment replevin statute as violative of due process. Prejudgment replevin statute: didn’t require a convincing showing that the goods were wrongfully detained before seizure. A person could merely file a complain, post a bond, and request a writ. To obtain a hearing, the person whose property was seized had to initiate a suit for a hearing.
Rule: Procedural due process requires that parties whose rights are to be affected are entitled to be heard at a meaningful time (before deprived of life, liberty & property); and in order that they may enjoy that right they must be notified.
H: Prejudgment replevin statutes violate the Due Process Clause of 14th Amendment b/c work a deprivation of property w/o due process of law (deny the right to a prior opportunity to be heard before chattels are taken from their possessor.)
Preliminary Injunction: Rule 65(a)
Temporary form of injunctive relief, holds things in place while court decides whether final relief is appropriate
Used when time it takes to get from pleadings to final relief can render the eventual remedy meaningless b/c the threatened harm will already have occurred
Require notice: Courts will not grant applications for preliminary injunctions until affected parties receive notice and an opportunity to oppose the proposed preliminary injunction (involves a mini-hearing, then court can issue)
Examples where useful: Domestic violence; if afraid D will use money out of country; disclosure of trade secrets – ask for order not to disclose trade secrets; non-compete clause – if someone leaves company & is about to move to competitor, the original company may file order to enforce a non-compete clause; where businesses will be irreparably damaged; there may be a physical chance to the land
Only granted in unusual circumstances where the merits clearly favor one party over another
4 Requirements: A plaintiff who seeks a preliminary injunction must establish: (Winter)
he is likely to succeed on the merits, (reason is well grounded in law and in facts)
he is likely to suffer irreparable harm in the absence of preliminary relief,
the balance of equities tips in his favor (balance harm to P if not granted & to D if granted), &
an injunction is in the public interest.
65(a): Preliminary Injunction (test in Winter)
(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial.
Temporary Restraining Order:
a restraining order in which in terms indicates or contemplates that a further hearing on the application is to be had before the application is finally acted on (the injunctive equivalent of a seizure w/o a hearing)
May be issued w/ even less process than preliminary injunctions
Can be used in combination w/ preliminary injunction if need faster results
Can be issued w/o notice: under certain circumstances a TRO may be issued ex parte or w/o the presence or knowledge of the other party (if think giving notice to D of suit might force the action you are trying to prevent)
Order not to exceed 14 days
Effective, with a single renewal, for a maximum of 28 days
Highly unusual b/c tends to violate due process & issued based off of one-sided testimony from P
65(b): Temporary Restraining Order.
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.
(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.
(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.
65(d): Contents and Scope of Every Injunction and Restraining Order.
(1) Contents. Every order granting an injunction and every restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.
(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties’ officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)
à Winter v. Natural Resources Defense Council, Inc. (2008, U.S.) (preliminary injunction)
F: NRDC (P) filed suit against U.S. Navy (D) to stop D from using sonar in its training programs due to the effect sonar may have on marine mammals. A federal district court granted a preliminary injunction against D and the Court of Appeals upheld b/c waiting until end of litigation would cause P irreparable damage.
Rule: A plaintiff who seeks a preliminary injunction must establish that:
(1) he is likely to succeed on the merits, (reason is well grounded in law and in facts)
(2) he is likely to suffer irreparable harm in the absence of preliminary relief,
(3) the balance of equities tips in his favor (balance harm to P if not granted & to D if granted), &
(4) an injunction is in the public interest.
H: Reversed & preliminary injunction vacated.
Irreparable injury must be likely not merely possible for an injunction & even if show irreparable injury any injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.
Pleadings: the way in which both sides tell their stories
Motion: request to the court, usually in writing, that seeks an order for certain actions to be taken (directed to specific aspects of case)
RULE 1: SCOPE AND PURPOSE These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
RULE 2: ONE FORM OF ACTION. There is one form of action — the civil action.
RULE 3: COMMENCING AN ACTION. A civil action is commenced by filing a complaint with the court.
7(a): Pleadings. 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; and
(7) if the court orders one, a reply to an answer.
7(b): Motions and Other Papers.
(1) In General. A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.
(2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers.
à Haddle v. Garrison (‘96/ U.S. ‘98): (motion to dismiss for failure to state a claim. Function of pleading = defining the law)
F: P at-will employee sued D employer for damages under Civil Rights Act § 1985(2) for allegedly conspiring to fire him to deter from testifying at a fed. Criminal trial. D filed Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted.
District Court granted motion to dismiss b/c A Civil Rights Act § 1985(2) claim requires that the P suffer actual injury, and discharge from at-will employment doesn’t constitute actual injury (b/c no constitutionally protected interest in continued employment).
Court of Appeals affirmed. S.C. reversed. A Civil Rights Act § 1985(2) doesn’t require an injury to a constitutionally protected property interest.
R: Although in constitutional context a distinction has been made re: at-will employment, this is a statutory claim & there is nothing in the text of the statute or in case law stating that an at-will employee doesn’t have a property interest in the job.
Plaintiff’s first pleading: complaint – Rule 8(a) = recipe for the modern complaint
Complaint: the document that sets forth either the initial plaintiff’s claim for relief or a third-party plaintiff’s claim for relief. There can be only one operative version of a complaint in a federal civil action; amended complaints supplant their predecessors
Burden of proof in civil litigation:
Allocated based on which party has opportunity to introduce issues into the case
burden of pleading facts for their claims they are introducing
Defendant has burden of affirmative defenses
8(a): Claim for Relief.  A pleading that states a claim for relief must contain:
(1): a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may incl

he case, by ensuring that the full and complete factual allegation is not postponed until discovery, and
(4) protects Ds against “strike suits”
Must be pleaded with particularly & also be pleaded in a manner showing a “plausible” claim for relief – Rule 8(a)
Usually only the circumstances of the fraud that must be pleaded with particularity, all other facts Rule 8 standard
Many courts require the pleader to allege:
(1) the time, place, and contents of the false representations or omissions, and explain how they were fraudulent,
(2) the identity of the person making the misrepresentations,
(3) how the misrepresentations misled the P, and
(4) what the speaker gained from the fraud
9(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
à Stradford v. Zurich Insurance Co. (2002, S.D.N.Y.) (Rule 9(b) heightened pleading standard for fraud)
F: Dentist (P) sued insurer (D) for property damage. D counterclaimed for fraud, contending that P was fully aware the damage had occurred during a period in which the policy had lapsed for non-payment of premiums. P moved to dismiss the fraud claim for failure to state their claims with sufficient “particularity” under Rule 9(b).
Rule: Under FRCP 9(b), the particular time, place, and nature of alleged misrepresentations must be disclosed to a party accused of fraud (while malice, intent, knowledge, and other conditions of a person's mind may be alleged generally).
H: D’s counterclaims claimed that P lied, but failed to identify the lie, thus not giving P fair notice of the claim and the factual ground upon which it was based.
Exhaustion remedies: requirement that a party exhaust all administrative remedies available before a court will intervene
à Jones v. Bock (U.S., 2007) (pleading requirements – burden of exhaustion to exhaust administrative remedies)
Prisoner (P) sued State (D) under 42 U.S.C. § 1983 (allowing individuals to claim that state or local officials violated their federal constitutional rights) after he suffered injuries in custody when the staff refused to reassign him to work he could perform in light of his injuries. D responded by invoking Prison Litigation Reform Act (1996) 42 U.S.C. § 1997e(a), requiring prisoners to seek administrative remedies in state law/prison system first before going to federal courts with claims.
A plaintiff need not plead and demonstrate exhaustion of administrative remedies in the complaint.
H: The statute doesn’t answer this question, so the Court must interpret the statute. Failure to exhaust is an affirmative defense under the PLRA & inmates are not required to specially plead or demonstrate exhaustion in their complaints. It is Bock who has introduced lack of exhaustion – so it is his burden.
*The outcome of this case is in keeping w/ Roberts’ Court’s general idea that policy considerations and courts should not expand the requirements of the FRCP. The general belief is that expansion of the Rules should be made through the Rules amendment process.
*Outcome of this case tells you that it also depends on the substantive law what has to be pleaded & who has burden!
Long-standing rules and codes of professional responsibility forbid a lawyer from making groundless allegations
Rule 3.1 of ABA Model Rules of Professional Conduct: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous…”
Rule 11: allows courts to enforce the standards in the context of litigation, rather than in an independent bar disciplinary proceeding that might occur long after the lawsuit was over
to deter baseless filings and “streamline the administration and procedure of the federal courts”
Rule 11(a) Signatures of attorney must be on all filed document
Rule 11(b) Representations to Court: by signing you say that it is accurate to the best of your knowledge, information, and belief
Rule 11(c) Sanctions: court may impose an appropriate sanction, limited to what suffices to deter repetition of the offending conduct
Intended to facilitate case management, not to increase caseload by requiring a district court to analyze the reasonableness of legal and factual contentions that it would otherwise not have to ascertain
Non-monetary sanctions: Presumably such as requiring the lawyers to take additional training
Monetary sanctions: Can be attorney fees; or fee and fine to court. 
Monetary sanctions cannot be awarded against a represented party for violation
Reasoning: it is the lawyers job to understand ways in which the claims work their way through the court systems
Incorrect facts by the clients may require sanctions against the client, but legal arguments belong under the lawyer’s responsibility
Cannot be awarded by court initiative unless the court issues to show cause before voluntary dismissal
When ordering the sanctions, reasoning must be explained in detail.