DUE PROCESS FOUNDATIONS!
Prejudgment Seizures: Look at Risk of Error (instrumental) and What’s at Stake
-Fuentes v. Shevin (stove)(white j., dissent “not worth the candle”)
Foundational: 14th amendment guarantee that no State shall deprive any person of property without due process of law (notice and pre-seizure hearing)
-Mitchell v. W.T. Grant Co. (fridge, stereo, washing machine, $ owed.)
Court approves Louisiana pre-judgment seizure cuz less risk of error: detailed affidavit, judge, exigency for lien-holder, immediate post-deprivation hearing/damages
-North Georgia Finishing, Inc. v. Di-Chem, Inc. ($ owed for goods, bank frozen.)
Georgia statute bad cuz conclusory allegations, court clerk, no early hearing, defendant can’t even challenge without bond
-Goldberg v. Kelly (welfare payments can’t be cut off without notice and hearing)
Matthews v. Eldridge
-social security disability benefits can be terminated w/out pre-termination hearing
1) THE PRIVATE INTEREST that will be affected by the official action
2) THE RISK OF ERROR and the probable value, of additional safeguards
-we want more protection when the risk of error is greater, and less protection when the risk of error is lower
-incentives for abuse, risk goes up; disincentives, risk goes down (ex: bond, sworn affidavit, repeat actor w/rep., extortion value, postdeprivation remedies)
3) THE GOVERNMENT’S INTEREST including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirement would entail
-Govt has the most latitude when it acts in its own behalf for the public, and the least when it acts for private party (when its not greater than private interest)
-Connecticut v. Doehr, 1991 (bar fight, guy wants to attach house)
1) Consideration of the private interest (high)
2) Risk of Error (high)
3) Interest of the Party seeking the remedy and the Govt Interest (low)
-Van Harken v. City of Chicago, 1997(parking tickets don’t need lots of process)
Conflates Matthews to cost-benefit test!
“The less at stake, all else being equal, the less is due” – posner
Criticism: value of proceeding for its own sake
Situations where the court has allowed summary seizure of property:
(public interest, exigency, monopoly of force)
-to collect the internal revenue of the US
-to meet the needs of a national war effort
-to protect against the econ disaster of a bank failure
-to protect the public from misbranded drugs and contaminated food
-Calero-Toledo = marijuana yacht seized in Puerto rico, exigency
PLEADING A CLAIM!
Not bound by formality -> Rule 1: just, speedy and inexpensive determination of every action and proceeding
Rule 7: There shall be a complaint and an answer
Rule 8 Complaint: 1) Why are you here? 2)What’s your gripe, what’s the issue? 3)remedy
Rule 12(b)(6), Rule 12(c), defendant/court ask if you accept the facts in the complaint, is there a legal dispute here that can be resolved as a matter of law?
Defendant counters allegations with defenses in answer
Defendant can raise defenses by motion 12(b): smj, pj, venue, insufficient service, etc.
US v. Board of Harbor Commissioners
(govt sues ten diff oil companies for oil discharged in river)
Not Rule 12(e): motion for a more definite statement = if pldg is so vague and ambiguous a party cannot reasonably be required to frame a responsive pleading; court says can be raised for “unintelligibility rather than want of detail”
-impt to be able to plead in the alternative cuz:
1) strategic consideration – first co. can blame the others
2) efficiency consideration – costs $ for ten suits, and inefficient
3) equity – statute of limitations would run out, no real loss to them cuz will be sued anyway, might have inconsistent results
-Who has the information/Who is the lowest cost provider of that info
-factory has easy access to info/mom and pop do not = why its ok to sue group of companies who are regulated and know info v. suing 100,000 boating enthusiasts
McCormick v. Kopman
(husband killed in car crash, wife sues both truck driver, and bar owner)
Rule 8(d)(3): Claims may be made in the alternative regardless of consistency!
-risk of strategic manipulation, if plaintiff really has the info
Use of Rules to Limit Effects of Misbehavior:
Rule 20(b): Protective Measures = the court may issue orders – including an order for separate trials – to protect a party against embarrassment, delay, expense or other prejudice that arises from including a person … including severance
Rule 42(b): separate trials for convenience, to avoid prejudice, or to expedite and economize
Mitchell v. Archibald & Kendall, Inc.
(grandpa shot off premises when delivering products)
Rule 12(b)(6): Defense by motion for Failure to state a claim upon which relief can be granted
-accept the facts as alleged for purposes of this motion. D says even if you accept all these facts, I am not liable
-7th amendment reserves questions of fact for the jury to consider and leaves the legal aspect up to court, here all you’re making is an evaluation of the controlling law
Ross v. A.H.Robins Company
(claim for fraud that company deliberately concealed probs with Dalkon Shield)
Rule 9(b): heightened pleading requirement. Fraud, Mistake, Condition of the Mind: In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally.
Purpose for heightened pleading standard for fraud:
1)Fair notice
2)Reputational harm (intentional)
3)In terrorem effect
- (ability to impose costs unrelated to merits of litigation, calculate settlement zone)
- expected value of claim for P = (probability x likely award) – costs of prosecuting claim
- expected value of claim for D = (probability P wins x P’s likely award) + cost of defense
Cash Energy, Inc. v. Weiner
(plaintiff wants to recover cleanup costs from co. CERCLA, they think environmentally contaminated their property)
Conflict between Rule 8(a) pleading requirement: short and plain statement of facts and the perceived need for higher 9b reqs in certain situations
-Keeton recharacterizes the fraud requirement in Rule 9b so as to apply it more broadly; takes it from fixed category to an example for a broader category
Leatherman v. Tarrant Country Narcotics and Coordination Unit
(suing police department for improper training cuz their const rights were violated by popo shooting dog and having party on lawn)
-initially dismissed cuz court tried to apply heightened pleading standard
Supreme Court ultimately held dismissal wrong cuz requirement of factual detail and particularity could not be reconciled with liberal system of the federal rules
Swierkiewicz v. Sorema Supreme Court!
(Hungarian guy suit for wrongful termination based on age and nationality)
-essentially shoots down expansion of 9b stricter pldg req
-if there is a list of particular things, anything not listed is excluded, any changes to 9b must be done by amending the federal rules
The Defendant’s Answer
Pre-Answer motions under Rule 12:
-rule 12(b)(6) failure to state a claim upon which relief can be granted, challenges the legal sufficiency of the allegations in the complaining
-rule 12(e) motion for a more definite statement
-rule 12(f) motion to strike “redundant, immaterial, impertinent, or scandalous matter”
Litigation proceeds in the following manner:
Rule 3: civil action commenced when plaintiff files complaint with the court
Rule 4(c): service of summons must be made with copy of complaint within 120 days as set out by 4(m)
Rule 6: Defendant has 20 days to answer; 6(b): for good cause, court may extend time
Defendant fails to answer in a timely manner
Default
55(a): Default Entry: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default
55(b)(1): clerk can enter default judgment if it’s an amount that can be ascertained with certainty (“a sum certain”) and the other party has not appeared
55(b)(2): Entry of default judgment by the court if non-liquid damage (tort), and has appeared, have to give notice
Setting Aside Default
55(c) Setting aside default for “good cause shown”
60(b) Setting aside default judgment “upon such terms that are just”
Default:
Shepard Claims Service, Inc. v. William Darrah & Associates
(Darrah fails to answer in time, despite extension, default reversed)
Test for determining when to set aside default:
1)whether the plaintiff will be prejudiced
2)whether the defendant has a meritorious defense (one “good at law”)
3)whether culpable conduct of the defendant merits a default (intent to thwart/reckless disregard)
-Highly disfavored: “default judgment deprives the client of his day in court, and should not be used as a vehicle for disciplining attorneys”
Default judgment is 1) a disproportionate response 2) doesn’t avoid court confronting merits in attorney-client proxy war
Zielinski v. Philadelphia Piers, Inc.
Rule 8(b): A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a party or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.
Rule 10(b): “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances”
-Zilenski is suing PPI for injuries from forklift collision with forklift that has PPI on it, PPI does not specify in their answer that they were leasing out their equipment and pier to Carload Contractors, Inc. By the time they find out, too late to sue them (Statute of limitations)
-> court pissed says that for purposes of case, forklift owned by defendant (= z will win, even though on the merits he should lose)
-Z messed by not averring things properly according to 8b, but PPI gets ultimate punishment because here you have strategic behavior + prejudice to plaintiff(defendant/insurance co. stands to gain from their deliberate withholding, though not illegal)
Rule: If you use monopoly on information strategically and cause prejudice, you’ll Get it!
David v. Crompton & Knowles Corp.
-C & K being sued for products liability based on personal injury from machine
-complaint alleged that Crompton designed, manufactured and sold it
-crompton answer says: “without sufficient knowledge or info to admit or deny the allegation, demanded proof”, later claim just found info that they got machine from hunter and did not assume liabilities -> court construed lack of info as admission
Rule 8(b): “party that lacks knowledge or information sufficient to form a belief about the truth of an averment must so state, and the statement has the effect of a denial.”
-“if the matter alleged in the averment was a matter of record peculiarly within the control and knowledge of the defendant, an answer that defendant was without knowledge or info sufficient to form a belief did not constitute a denial under 8b”
Rule: If you have info, you have an obligation to get it, and you cannot rely on incomplete info in situations where the other side may be prejudiced
PARTIES AND PRECLUSION!
Claim Preclusion:
Wigglesworth v. Teamsters
-wigglesworth has claim against teamsters cuz freedom of speech denied during specific mtgs and requests to have union members informed of their rights denied
-they assert counterclaim based on recent media incident where he disses them, claim libel and slander
-because teamsters don’t have fed q. jurisdiction, they can only bring claim under supp jurisdiction if it’s a Compulsory counterclaim, found to be permissive
Finality, Repose, Equity (unfair to have to do it again, inconsistent), Efficiency!
Rule 13(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which … arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim
Rule 13(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claims
If don’t bring compulsory counterclaim up at T1 barred by Rule 8(c) Affirmative
Defense of RES JUDICATA from ever bringing it again! = Importance of defendant’s answer, forces attorney to think of whole range of disputes.
Test for compulsory or permissive counterclaim:
1)are the issues of fact and law raised by the claim and counterclaim largely the same? (overbroad)
2)Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? (circular)
3)*Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim? (used here)
4)Is there any logical relation btwn the claim and the counter-claim?
As between the two parties, a final resolution of the case resolves all disputes between those parties as to the transaction and occurrence, regardless of whether they raised it or not, one chance to raise it and that’s it!
Things that allow a new suit with same parties:
1)change in law –doesn’t render T1 judgment void, but allows you to bring it again
2)change in fact-material change in circumstance, not learned something new
-Rule 60B: can revisit an earlier judgment if it need equitable relief
Counterclaims versus Cross-Claims
A, B, and C are involved in a three-way car crash, A then sues B and C (A v. B & C)
Cross-Claim Rule 13(g)- says that B and C “may” bring a cross claim against eachother; “a pleading may state as a cross claim any claim by one party against a co-party arising out of same transaction/occurance,”compare with 13a which says you “must” bring a compulsory counterclaim. Cuz you don’t want to force parties to litigate that otherwise wouldn’t have, haven’t engaged the legal system.
Manego v. Orleans Board of Trade
-first claims conspiracy based on race, than conspiracy based on anti-trust, the claims against original parties are dismissed for res judicata
-test for claim preclusion under res judicata is arise out of same transaction or occurrence = see if facts are related in time, space, origin, motivation, etc.
Res Judicata: Preclusion applies to all claims brought by same parties present in in T1 in the T2 lawsit that were brought or could have been brought (under a transactional relation test) against parties that were present in T1
-claim the original defendant should have brought “cumpulsory counterclaim”
-claim the plaintiff should’ve brought “res judicata”
-what constitutes a “party” at T1 includes and binds parties in sufficient privity with those parties that were present in T1
ISSUE PRECLUSION/COLLATERAL ESTOPPEL
-allows claim to go forward, but does not allow the relitigation of certain ISSUES
Blonder-Tongue: A plaintiff can’t assert a claim that he had previous litigated and lost against another defendant. Allows issue preclusion to be used against the plaintiff who has already had a full and fair opportunity to litigate the issue on the merits. Using non-mutual issue preclusion as a “shield,”(defensive collateral estoppel). Allowed because plaintiff chose to bring the first suit, had fair opportunity, put issue on table, has to live with it, can’t complain.
Ex. T1: Jones v. Smith
T2:Jones v. Brown, Brown gets to do defensive collateral estoppel against J
BUT: You cannot be bound by an issue determination if you haven’t had your day in court on the issue
-offensive collateral estoppel is bad, because you shouldn’t be bound by what happens to someone you’re not in privity with. You haven’t had your day in court. Ex. T1: Jones v. Smith, T2: Jones v. Brown
Parklane Hosiery v. Shore (in T1, govt went against him for SEC violations, now private parties suing for same thing want to claim offensive issue preclusion)
Test of when it would be unfair to have offensive collateral estoppel:
1)wait and see plaintiff
2)defendant didn’t fight first case that hard
3)if the judgment held to is inconsistent with previous judgments in his favor
4)unfair when second action affords the defendant procedural opportunities unavailable in first action that could readily cause a different result
-Rule: after Parklane a defendant has a huge risk in mass harm case; the first case they lose against the first plaintiff could mean that they lose against world!
SMU v. Wynne & Jaffe (discrimination in the hiring and retention of women law students in Dallas law firms in ’79; four female lawyers A,B,C,D want to proceed anonymously so it won’t wreck their career)
Rule 10(a): every pleading must have the names of the parties
Exceptions:
-personal information of the utmost intimacy (ex. Abortion, homosexuality)
-had to admit broke the law or wished to
-challenging govt activity, therefore limited reputational harm to defendant