INTRODUCTION TO THE CIVIL PROCESS[1-4]

-In our system, judges are “umpires”

-Civil procedure is about dispute resolution

-the doctrine in civil procedure is guided by our common sense

-Rule 1

-The goal of civil procedure is to secure the just, speedy, and inexpensive determination of every action

-The line between substantive and procedural law is a bit ephemeral

-The civil system is adversarial

-Civil procedure brings the issue of power to the foreground

-in civil litigation we should not hurry into trial

Pretrial Conference

-Rule 16

-16(c) Empowers the judge to call a pretrial conference to encourage settlement

-Not designed to force people to settle

-16(f) Allows judge to impose sanctions under certain conditions (failure to obey scheduling order; failure to attend a pretrial conference; failure to negotiate in good faith)

-Settlement is good for litigation because its creates efficiency in the judicial economy

-Litigation is good for settlement because it allows for parties to evaluate the strength of their position and thus move toward settlement

STAKES OF LITIGATION

PRE-JUDGEMENT SEIZURE[5-13]

Fuentes

  • Hearings are always required for prejudgment seizures except in extraordinary circumstances. Extraordinary situations that justify postponing notice and opportunity for a hearing (ex parte prejudgment seizure):
  • (1) seizure has been directly necessary to secure some important governmental or general public interest;
  • What counts as an important government or public interest?
  • (2) there has been a special need for very prompt action;
  • What qualifies for prompt action?
  • (3) the State has kept strict control over its monopoly of legitimate force; the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance
  • Which state officials?
  • Court does not make clear whether we need all 3 factors to execute a ex parte prejudgment seizure
  • Ultimately, hearings are going to be required for a matter of course, except in those extraordinary circumstances that the SC does not seem to think will ever arise

Mitchell

  • SC holds that a statute allowing repossession (without a prejudgment seizure hearing) by a creditor will be valid if it
  • (1) requires presentation of specific facts about the claim,
  • (2) requires that the facts be presented to a judge rather than to a clerk, and
  • (3) provides for an immediate post-repossession hearing at which D can present his case

Di-Chem

  • RULE regarding the need for preseizure notice after Di-Chem
  • There is always an adversarial hearing, except when there is some other safeguards to guard against mistaken repossession:
  • (1) the creditor must post a bond to safeguard the interest of the debtor;
  • often a double bond
  • (2) the creditor or someone with personal knowledge of the facts must file an affidavit which sets out a prima facie claim for prejudgment attachment of the property
  • (3) a neutral magistrate must determine that the affidavit is sufficient before issuing the writ of attachment or replevin;
  • judicial involvement
  • (4) there must be a provision for a reasonably prompt post-attachment hearing for the debtor
  • other possible factors:
  • (5) plaintiff has a pre-existing interest in the property such as a vendor’s lien and/or (6) show exigent circumstances (necessitating prompt action) and/or (7) assert a claim readily resolved by documentary evidence (i.e. business records)

Doehr

-balancing test

  • Like Fuentes, you will need a hearing for a prejudgment seizure, UNLESS there are exceptional circumstances
  • Exceptional circumstances determined by formula:
  • DI < (1-RE) x PI
  • Like Fuentes factors: (1) requiring factual affidavit up front instead of ; (2) neutral magistrate; (3) bond; (4) post-seizure hearing…also, (5) consideration of the nature of issues…can they be resolved on business papers alone (providing for a clean resolution); (6) P’s pre-existing interests; (7) exigent circumstances that called for prompt action
  • Enumerated factors captured by formula
  • DI…Bond; post-seizure hearing; D’s interest in property
  • RE…factual affidavit up front, neutral magistrate, resolution on papers alone
  • PI…need for prompt action; P’s preexisting legal interest in the property

-D’s interest < (1-Risk Error) x P’s interest…prejudgment seizure without a hearing is okay

-Here, placement of RE allows for some weighing in favor of D

-Prejudgment seizure is okay if the PI discounted by the risk of error is greater than any potential harms suffered by D

-High DI…then we need a high PI and a low RE in order to okay prejudgment seizure without hearing

POST JUDGMENT REMEDIES

DAMAGES[14-17]

  • Judicial remedies are the ultimate objective of the litigation process
  • You need to be able to think about what you can get out of litigation before you start litigation…Why:
  • (1) Civil litigation is costly
  • (2) You have to state damages in your complaint
  • (3) You have to think about settlement
  • Three types of damages
  • Money damages
  • Equitable damages (injunctive relief)
  • Injunctions, orders of specific performance, declaratory relief
  • Costs of litigation

Piphus

  • Positions for damages in regards to Constitutional rights damages
  • (1) Compensatory damages are needed to deter
  • punitive damages are damages that go beyond compensatory damages and their concerns with deterrence
  • (2) Compensatory damages can occur just because rights were deprived, but there must be some sign of injury to be compensated as well
  • Here, you are compensating the victims for what right they were deprived of…Due Process violation calls for:
  • (1) compensation for the lost accuracy of outcome
  • (2) UNLESS, if you can prove an injury because of the deprivation of these constitutional rights, then you may be able to receive more than nominal damages

EQUITABLE REMEDIES & CONTEMPT[17-23]

  • Rule 65
  • directly order D to take or cease certain specific action
  • only available when money damages would not be a sufficient remedy
  • The criteria for granting a permanent injunction resembles those for granting a preliminary injunction: (judges have discretion, but discretion is often limited by P’s specific prayer for relief)
  • (1) whether P has actually succeed on the merits
  • (2) whether he has an adequate remedy at law
  • (3) whether he risks imminent irreparable harm
  • (4) whether the balance of hardships weighs against issuance of an injunction
  • (5) whether an injunction would serve the public interest
  • (6) whether the court can, as a practical matter, administer the injunction
  • ease of administratibility
  • for preliminary injunctions courts look at these same factors but in essence look at the LIKELIHOOD that…P will succeed on the merits, will have an adequate remedy at law, etc.
  • difference between Temporary Restraining Order and preliminary injunctions
  • (1) how they are obtained
  • TRO…can be obtained ex parte
  • PI…only be obtained when both parties are there to argue
  • (2) duration
  • TOR…few days, usually 10 or so
  • PI…longer, and more importantly you can convert a PI into a permanent injunction if you prevail on the merits
  • Enforcing equitable remedies – Contempt
  • Because the court itself has ordered D to act, it cannot accept D’s failure to do so with the kind of indifference that may attend D’s failure to pay P the amount of the money judgment
  • Contempt…”civil-criminal hodgepodge”
  • (1) criminal contempt…the distinguishing feature of criminal contempt is that the penalty imposed is not designed either to compensate P or to prompt compliance in the future
  • (2) compensatory civil contempt…court may direct D to pay P an amount that compensate P for the harm caused by the violation of the decree
  • (3) coercive civil contempt…court may impose a penalty on D in order to prompt future compliance with the decree (rather than
  • 65(d)(2)
  • injunction binds only those who receive actual notice and who are parties, parties’ officers, agents, servants, employees, and attorneys, or “other persons who are in active concert or
  • Collateral bar rule: you can’t challenge the merits of court order, you can only challenge the issuance of it

COST OF LITIGATION[23-25}

  • Litigation is expensive. 54(d)(1) provides that the prevailing party usually can recover its costs of suit. But these costs are ordinarily limited to the items listed in 28 USC § 1920 – filing fees and certain out-of-pocket expenditures.
  • 54(d)(2): a claim for attorney’s fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.
  • America is one of the few judicial systems in which the loser does not pay the winner’s attorney’s fees
  • 54(d)(1) has been interpreted to authorize recovery of fees by Ds only when P’s suit is “frivolous, unreasonable, or without foundation.”
  • But when civil rights Ps prevail, Ds must usually pay their fees whether or not the defenses were groundless (because of 1988)
  • Ordinarily, as in 1988, fee-shifting statutes authorize the award of a “reasonable” fee. In Venegas, this fee award is calculated by what is called the “lodestar” method by multiplying the hours worked by the lawyer times the lawyer’s hourly rate. In deciding whether the fee award is reasonable, the court may disallow hours that were spent on unsuccessful claims or inefficiently used. Regarding billing rate, ordinarily the court will use the attorney’s customary rate for paying clients, In Venegas, the court doubled the lodestar fee award because Mitchell performed “competently.” But the SChas frowned on such enhancements of lodestar amount.
  • Besides paying lawyers, litigants must initially pay filing fees and the like even if they are ultimately able to recoup them. Federal courts will excuse payment of those fees by people eligible to file in forma pauperis, 28 USC § 1915, but that option is not always available. The SC has sometimes found the imposition of these fees to violate due process when a “fundamental right” is involved and a litigant cannot afford the fees.

PLEADING MATTERS[26-29]

-pleading serves one function…notice

-Complaint

-shows jurisdiction, statement of claim, relief8(a)

-Degree of specificity required

-8(a)’s requirement of a “short and plain statement of the claim showing that the pleader is entitled to relief” has generally been construed so as to place the fewest possible technical requirements on the pleader. The level of factual detail required has not been high; gaps in the facts are usually remedied through discovery or other pre-trial procedures.

-12(b)(6): failure to state a claim for which relief can be granted

-12(e): motion for a more definite statement

-12(f): motion to strike

-8(d): pleading in the alternative is okay, regardless of consistency

-you can plead novel theories

-Contradictory claims are forbidden when P knows one of the claims to be false.

-However, all you need to do to be able to plead inconsistently is have a LITTLE BIT of uncertainty

CONSISTENCY AND HONESTY IN PLEADING [29-33]

-attorney must not file frivolous 11

-Pleadings cannot be frivolous, and/or issued to harass or delay the adversary.

-A lawyer who fails in this duty may be fined or otherwise sanctioned

-When the lawyer files (and signs) a pleading, he thereby “certifies that to the best of his knowledge, information ,and belief, formed after an inquiry reasonable under the circumstances, -- 11(b)

-(1) the pleading “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;”

-(2) “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;”

-inquiry into the law

-(3) “the factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;”

-inquiry to the facts

-(4) “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or lack of information”

-Procedure for invoking 11

-Normally proceedings to impose sanctions will be made by the opposing party, but the can also be made by the court under 11(c)(1)(B)

-Under 11(c)(2), an offending party gets a 21-day “safe-harbor” in which to withdraw or correct any bad pleading, and is he does so, there can be no sanctions no matter how outrageous the original misconduct

-the purposes of sanctions is the deter, but we don’t want to overdeter

-11(c)(3): judge can circumvent safe harbors provision in unusual circumstances (i.e. where the lawyer is acting in bad faith)

-Sanctions against party

-11(c)(1): court may impose sanctions upon a “party that violated 11 or is responsible for the violation”

-Federal courts also have “inherent power” to sanction conduct that is in contempt of court, whether or not this conduct is covered by 11.

SCRUNTIINIZING THE LEGAL SUFFICIENCY OF PLAINTIFF’S CLAIM [33-34]

-There are incentives on the back end in terms of sanctions and on the front end in terms of pleading

-Spelling out your theory…strategies

-Upside of spelling out your theory

-You provide notice to judge and opposing counsel

-Downside of spelling out your theory of “on the premises”…you might get a theory from a judge that helps your case

HEIGTENGED REQUIREMENTS OF SPECIFICITY [34-44]

-Special matters

-In addition to the general requirement of a “short and plain statement of the claim” imposed by 8(a), certain special matters must be pleaded with particularity if they are to be raised at trial. These “special matters” are ones notice of which is thought to be necessary in order for the opponent to be able to prepare for trial. They are typically claims which the adversary will not be expecting unless his attention is specifically called to them.

-Catalogue of matters: These special matters, which are listed in Rule 9, include the following

-any denial of any party’s legal capacity to sue or be sued 9(a)

-the circumstances giving rise to any allegation of fraud or mistake 9(b)

-however, malice, intent, knowledge and other conditions of a person’s mind may be alleged generally

-four explanations

-(1) notice

-(2) limits frivolous lawsuits

-However, heightened requirements of pleading for fraud claims may also eliminate meritorious lawsuits that are difficult to argue without discovery

-(2) injury to reputation

-(3) limiting in terrorem value of suit

-any denial of the performance or occurrence of a condition precedent 9(c)

-the existence of official documents and acts or judgments, on which the pleader plans to rely 9(d) and 9(e) respectively

-material facts of time and place 9(f)

-special damages9(g)

-certain aspects of admiralty and maritime jurisdiction 9(h)

-in pleading, the majority holds that a tie goes to P

Twombly

  • How much of a change is this really?
  • It is possible that the SC read the pleading requirement more narrowly here because of the burdensome discovery that was associated with this case (it was an antitrust case)
  • Is the burden of discovery a legitimate reason for raising pleading requirement?
  • YES
  • But, the application of strict pleading requirements should not extend to cases where the D does not have expensive discovery. Without the expensive discovering the reasoning for heightened pleading falls on its face.
  • Protecting corporate interest at the cost of rejecting Ps’ claims
  • It looks as though we are MOVING AWAY from a notice-pleading regime…Into more of a fact-pleading regime

Iqbal

-2 part test

-(1) Filter legal conclusions

-(2) Plausibility

-Court’s reason for saying Twombly applies to all cases’ pleading

-Twombly interprets Rule 8…Rule 8 applies to all cases…thus Twombly does apply to all cases

-Twomblymay not be even applicable to all civil cases (but even if it is, it really should not change much…we should still focus on notice-pleading and deal with what seems to be a very elastic notion… “plausibility”)

-However, it seems as though the SC will continue to apply it to big business and big government cases

-It is important to note that this has all happened without Congress amended the FRCP

-RECAP: we seem to have moved from a notice pleading system to one of “flexible pleading”

DEFENDANT’S PRE-ANSWER MOTIONS[44-45]

-If claim is filed properly, then D must file and pre-answer motion and/or answer, and if not D defaults

  • Rule 12
  • All objections of a procedural nature, except for failure to state a claim
  • Must be filed within 21 days or 60 days (with waiver)
  • 12 (b)(1): that the court is not empowered to exercise jurisdiction over the subject matter of the suit
  • 12 (b)(2): that the court lacks personal jurisdiction over
  • 12 (b)(3): that this particular court is not the roper location (venue) for the suit
  • 12 (b)(4) & (5): that the circumstances or method for serving process were incorrect
  • Rule 12(b)(6) – failure to state a claim upon which relief can be granted – which challenges the legal sufficiency of the allegations in the complaint
  • Relation to motion for judgment on the pleadings
  • 12(c) motion for judgment on the pleadings
  • after complaint and answer, P can file a 12(c) motion for judgment on the pleadings
  • distinction from 12(b)(6)
  • with a 12(c) you are looking at only the pleadings
  • with a 12(b)(6), the court is a only going to look at the complaint
  • 12 (b)(7): that the suit shouldn’t go forward without a required party
  • if D files a pre-answer motion within the 20-day period following service of the summons and complaint, the deadline for filing an answer is extended 12(a)(4)
  • if the court denies the motion of postpones its disposition, the D has until 10 days after notice of the court’s action to file an answer
  • if the court grants the motion, P will usually be granted leave to amend (which stars the process again) or the suit will be dismissed; however, if a motion for a more definite statement is granted, the D has until 10 days after service of an amended complaint containing a more definite statement in which to file its answer
  • the purpose of 12(g) and 12 (h) is to prevent the pleader from using multiple pre-answer motions for different defenses and from omitting certain defense form motions or answers
  • 12(h)(1): provides that four disfavored defenses – lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process – will be waived forever if omitted from a pre-answer motion or, if not motion is made, from the answer.
  • 12(h)(2): provide that three favored defenses – failure to state a claim upon which relief can be granted, failure or join and indispensible party, and failure to state a legal defense to a claim – can be made in any pleading, or by motion for judgment on the pleadings, or at trial on the merits
  • 12(h)(3): states that the most favored defense – lack of jurisdiction of the subject matter – may be made at any time.
  • And this means any time…even on appeal
  • by filing a pre-answer motion, the D extends the time for filing an answer
  • Why might you forego a pre-answer motion?
  • One reason is because we are often talking largely technical violations
  • Sometimes it is only a waste of time to have the opposing party properly serve you after performing improper service
  • Sometimes if you spot a weakness in another attorney’s complaint, you may not want to make it evident to his client so that the client does not lose confidence in the weak attorney and fire what would have been an potentially weak adversary
  • Attaching an affidavit to a motion to dismiss make cause you to show your hand too early and provide the opposition with insight into your case if you lose the motion

DEFENDANT’S DEFAULT[45-47]