Civil Procedure Outline
Professor Greg Fox
I.) Preserving the Status Quo and Ensuring Security for a Final Judgment
a.) Provisional Remedies (64 & 65)
II.) Framing and Responding to the Plaintiff’s Story: Pleadings
a.) Complaints (7, 8 & 15)
b.) Ethical Limits on Pleading and Pleading Disfavored Claims (9 & 11)
c.) Amendments (15)
d.) Service of Process (4)
e.) Motions to Dismiss and Answers (12 & 8)
f.) Additional Claims by Plaintiffs and Counter-Claims by Defendants (13 & 18, 8 USC §1367)
g.) Joinder of Additional Parties (14, 20, 21 & 42)
h.) Compulsory Joinder (19)
a.) Methods (27-37)
b.) Scope (26)
3.) Work Product
4.) Expert Information
IV.) Constitutional Limits on Claimed Damages
a.) Punitive Damages (State Farm Handout)
V.) Avoiding Trial
a.) Contracting for Arbitration (9 USC §§2, 4)
b.) Summary Judgment (56)
VI.) Trial: Judge or Jury?
a.) Right to a Jury Trial (7th Amendment & 38-39)
VII.) Trial: Limits to Jury Discretion
a.) Controlling Finding of Fact (50)
b.) Controlling Jury After Trial (59)
a.) The Final Judgment Rule and the ? (52 & 28 USC §§1291 & 1292)
b.) Scope of Appellate Review
c.) Class Actions (23)
I.) Preserving the Status Quo and Ensuring Security for a Final Judgment
a.) Provisional Remedies (64 & 65): These are remedies protect the status quo of a case.
1.) Rule 64: Seizure of person or property
1) any existing statute of the U.S governs to the extent to which it is applicable.
2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules. Remedies: arrest, attachment, garnishment, replevin, sequestration, and other.
2.) Rule 65(a) Preliminary Injunctions (PI): An order that states that a company or person must proceed or refrain from doing something.
(1) Notice. NO PI shall be issued without NOTICE to the adverse party.
(2) Consolidation of Hearing with Trial on Merits.
A.) When would you WANT a Preliminary Injunction?
i.) To create security for the final judgment
ii.) Historical Landmark
iii.) Physical Violence
iv.) A financial transaction that would result in an irreparable economic harm.
v.) Employment contracts prohibiting executives from working for a competitor and/or share a company’s business with that competitor.
B.) When would you be GRANTED a Preliminary Injunction
i.) ∏ must claim that they will suffer irreparable injury if relief is not granted. The ∏ wants to be put in the same position that they were before the ∆ disputed practices.
· The ∏ will probably prevail on the merits of the evidence because the standard is so weak.
· The standard is weak so that the judge’s decision may not skew the jury’s decision. Also the dearth of evidence would force the ∏ to present evidence they do not have access. Thus, the test must ask for a little less from the ∏. Finally, it is in the public’s best interest to stop potentially unfair practices that homogenize the market.
ii.) Exception: HOWEVER, the ∆ may not be harmed MORE than the ∏ might be helped.
C.) Problems with filling a PI: As Rule 65(a)(1) provides, NO PI shall be issued without NOTICE to the adverse party and 65(a)(2) states that there must be a hearing before the application of a PI. These rules give the adverse party the chance to siphon money away and leave nothing for a ∏ if they were to win judgment against that party.
3.) Temporary Restraining Orders (TRO): A court order preserving the status quo until a litigant’s application for a preliminary or permanent injunction can be heard.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A TRO may be granted WITHOUT WRITTEN OR ORAL NOTICE [a.k.a., ex parte] to the adverse party or that party’s attorney ONLY IF (1) it CLEARLY appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court IN WRITING the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice SHOULD NOT BE REQUIRED.
A.) Limits on TRO: According to 65(b) a TRO is “not to exceed 10 days, as the fixes, UNLESS within the time so fixed the order, for good cause shown, is extended for a like period or UNLESS [the party to whom the order is directed consents for a longer extension].
i.) This element is set to create the least amount of dislocation to ∆.
B.) Turning a TRO into a PI: Again 65(b) provides that, “In a case TRO is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the EARLIEST possible time and takes precedence of all matters except older matter of the same character;”
4.) Repossession of Property: In Fuentes v. Shevin, the SC found the repossession of the ∏ goods without notice was not acceptable because it violated the fourth amendment. “If due process is to be meaningful notice must occur before repossession. Unless, directly necessary to secure important governmental or general public interest.”
II.) Framing and Responding to the Plaintiff’s Story: Pleadings:
a.) Complaints (7, 8): The major function of pleadings under the Rules is to provide parties with NOTICE of the NATURE of Claims or DEFENSES.
1.) Notice: The Rules require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2). The pleader ALSO MUST state the grounds for the court’s jurisdiction, 8(a)(1), AND a demand for relief, 8(a)(3).
2.) Detailed Fact Pleading NOT REQUIRED – 8(e)
A.) 8(e)(2) provides one can make alternative claims in the pleadings. The reason why this is allowed is because at the very beginning of the case the party may not know what it will be able to prove. Thus, it is not unreasonable for a party to cover all the possible parties it can make, but eventually they will have to narrow and choose only provable claims.
3.) Justice over Error: 8(f) provides that All pleadings shall be so construed as to do substantial justice. So you can’t throw out a case because of a procedural error.
b.) Ethical Limits on Pleading and Pleading Disfavored Claims (9 & 11): The ethical standards of Rule 11 and the higher pleading standards placed on disfavored claims impose constraints on federal pleading.
1.) Ethical Limits on Pleadings & Rule 11
(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party…
(b) Representations to Court. [IF you present something to the court you are certifying that you have researched it reasonably.] (Not knowing that you were wrong is not a defense against a Rule 11 violation, which is very embarrassing.)
(1) Not presenting pleading for an improper purpose, i.e.; to harass, stalling, and needless cost raising
(2) Unwarranted claims by existing law, i.e., filing a lawsuit so you can create new law or extend/modify/destroy existing law (HOWEVER, if the case, on its face, is intended to change the law, i.e.; Brown v. Board of Education, it is permissible.)
(3) The pleading must have evidentiary support OR is LIKELY to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) The denials of factual contentions are warranted on the evidence OR, they are reasonable based on a lack of information or belief.
A.) How do you determine a 11(b) violation?
i.) Act v. Mind: The existence of a tangible harm is not necessary to show that a rule 11 violation has been made. It s more important to focus on what the attorney knew before the document was filed.
he clerk for signature and seal.
(c) Service with Complaint; by Whom Made.
(1) Summons must be served with a copy of the complaint, AND the ∏ IS responsible for service within 120 days after the filing of the complaint OR however else Rule 4(m) provides.
(2)Who can serve: NOT A PARTY and 18 or older. The ∏ can also request a US Marshal to serve OR, if it is allowed, you may serve by mail..
(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.
(1) If you waive, you can still object to venue OR jurisdiction.
(F) Waiver must returned within 30 days from when the request was sent AND 60 days for those who reside outside the US.
(G) Failure to Waive. If you fail to waive you will incur the cost it will take for the other party to physically serve you UNLESS you can show good cause.
(3) If You Waive? You will not have to file an answer until 60 days from when the request to waive was sent or 90 day if you are outside the US.
(e) Service upon Individuals Within the US
(f) Service upon Individuals in a Foreign Country. You must look to internationally agreed means and then the other steps are followed. This rule may hold ∏ accountable for foreign law.
(g) Service upon Infants and Incompetent Persons.
(h) Service upon Corporations and Associations. For corporations who have failed to designate an agent for service, the secretary of state is an agent by law who can receive service of process. Corporations must formally appoint of an agent. Rule 4(h)(1): “…copy of summons and [the] complaint to an officer, a managing or general agent, or any other again authorized by statute to receive and the statute so requires, by also mailing a copy to the defendant…”
(i) Serving the Government.
(j) Serving Foreign, State and Local Governments.
(k) Territorial Limits of Effective Service.
(l) Proof of Service
(m) Time Limit for Service. This penalty can cause the complaint to be dismissed w/o prejudice (Not a final decision and the ∆ can re-file) or an extension can be granted if they show “good cause.”
(n) Seizure of Property; Service of Summons not Feasible
A.) Encouraging Waiver of Service: Waiver of service is encouraged by the rule, because it gives the ∆ more time to answer the complaint. Rule 12(a)(1)(A) provides one 20 days while Rule 4(d)(3) gives 60 days. Also, failure to waive service by ∆ would cause the ∆ to incur costs of methods of service, unless they can show good cause. (Rule 4(d)(2)(G))
B.) On the ∆: It is the responsibility of the ∆ to make the judicial system as efficient and cost effective as possible.
C.) When can a defendant legitimately claim “good cause”?
i.) If ∆ did not receive or did not understand the waiver are basically only forms of “good cause.”
D.) Where can you be served? You can only serve in a location that has personal jurisdiction over the defendant, service is not effective if there is not personal jurisdiction.
e.) Motions to Dismiss and Answers
1.) What does a ∆ do when they receive a complaint?
A.) Do Nothing
C.) Make a Pre-Answer Motion
2.) When do they have to respond?
A.) Rule 12(a): Must serve an answer after 20 days after receipt or if the service is waived, they get 60 in the US and 90 out of the US.