CIVIL PROCEDURE OUTLINE.doc

CIVIL PROCEDURE OUTLINE: I. INTRODUCTION TO THE CIVIL PROCESS: Civil procedure provides the mechanism through which disputes are resolved, when persons involved in disputes cannot follow the usual process of resolving disputes Substantive law (rights, duties, & obligations) vs. procedural law (rules that govern rights, duties, & obligations; provides a mechanism for applying substantive laws to concrete disputes) Adversarial process: the litigants themselves carry the burden of presenting the facts Study of civil procedure: study of how substantive law is enforced THE JUDGES ROLE: o Bands Refuse Removal, Inc. v. Borough of Fair Lawn (1960): Facts: Carpassos entered into contract w/ Borough for garbage collection. Borough required permit to collect garbage, and denied permit. Procedural Facts: Judge communicated w/ s attorney before trial and discussed production of witnesses. Judge secured files & documents from prosecutors office & sifted them in advance; called witnesses on his own motion or had amicus (“friend of the court” who acts for one party in brief) to do so. Judge produced a large number of witnesses and added their testimony into evidence. Judge created new issues never mentioned in pre-trial order. Rule: Trial judges must behave reasonably and exercise only limited power in calling witnesses and presenting new issues. Amicus in this situation acts as a proxy. Judges are typically unprepared & ignorant in our system, so when they get overly involved they often make mistakes. Judge must give parties affected by new issues full & fair opportunity to meet those issues. Carpassos should have been given reasonably time to answer cross-claims from Substantive justice vs. procedural due process: fairness of process is important b/c the losing party will be more likely to accept the outcomeo Kothe v. Smith (1985): Facts: Judge directed counsel for parties to conduct settlement negotiations. Judge recommends the case to be settled for between $20,000-$30,000, and states that if it goes to trial and then the parties settle, he will sanction the parties (either one or both). s tell judge they would settle for as low as $20,000; however, their lowest communicated offer to s was $50,000. The parties settle one day after trial. Rule: Although judges can encourage settlement negotiations, the imposition of a sanction, especially on only one party, is excessive. Rule 16-c(9): “At any conference under this rule consideration may be given, and the court may take appropriate action, w/ respect to9. settlement and the use of special procedures to assist in resolving the dispute when authorized by statute or local rule.” encouragement of pre-trial settlement discussion Rule 16(f): sanctions if party is unprepared or fails to participate in good faith had no indication that party would settle in the vicinity of $20,000 Sanctions: not related to liability SETTLEMENTS: act as benchmarks, but they fail to provide precedents (no rule is established) Pros: allows more cases to go through court system Cons: Not the same sense of vindication. o Confidential: nobody will know what case settled for - people dont know what their rights cost Court recognizes a gap b/w substantive rights & outcome of litigation (being in the right is not always sufficient to receive your due in the system: this raises questions about the meaning of the legal process. o How confident are you in your ability to persuade others about the truth? Litigation forces people to contemplate settlement: more information is revealed; more pressure from judgesII. STAKES OF LITIGATION DAMAGES: o *MONETARY DAMAGES COMPENSATORY/PUNITIVE: COMPENSATORY: Medical expenses, lost wages, pain and suffering Value of lost property: FMV/sentimental value PUNITIVE non-compensatory: intended to deter; when there is evil motive or intent 1. Outrageousness of the conduct 2. Wealth of the 3. Limited by: o Fairness o Subject to review by judge - Remititor of Damages: judge reviews and determines whether number is right (pain and suffering, etc.); Additor of Damages: judge reviews & escalates damageso “Non-punitive” damages: handed down to deter constitutional violations Carey v. Piphus (1978): Facts: Two students suspended from schools w/o procedural due process. Complaints sought declaratory & injunctive relief, along w/ punitive damages. Holding: Nominal damages of one dollar awarded. Rule: In the event does not put on evidence of injury due to denial of due process, in most situations he will be awarded only nominal damages but no compensatory (“non-punitive”) damages. Application of tort principles to come up w/ damages in this case does not really work What is lost? accuracy of outcome; feeling that the government has treated you fairly Judge has to determine what the outcome would have been if Piphus had been able to state his case. o *EQUITABLE RELIEF (SPECIFIC PERFORMANCE, INJUNCTION, ETC.) Smith v. Western Electric Co. (1982): Facts: shares office w/ other employees who smoke & suffers from severe adverse reaction. told not to submit any more complaints through anonymous complaint procedure. NIOSH recommended smoking policy which was not followed by . eventually given the choice b/w respirator or demotion. Holding: has stated a claim upon which relief can be granted; he should be given opportunity to prove allegations. Rule: The criteria for granting a permanent injunction include: 1. whether has actually succeeded on the merits; 2. whether has an adequate remedy at law; 3. whether risks imminent irreparable harm; 4. whether the balance of hardships weighs against issuance of injunction; 5. whether injunction would serve public interest; 6. whether the court can, as a practical matter, issue the injunction. Balancing the hardships in this case: If Smith is free to smoke, then the company will suffer. (employees will be unhappy) Requirements for a Preliminary Injuction: o 1. strong likelihood of success on the meritso 2. likelihood of irreparable harm o 3. balance of harmo 4. Advancing of public interest Temporary Restraining Orders (obtained in ex-parte basis proceedings in which the other side is not in front of the judge; cannot last for more than ten days) vs. Preliminary Injunctions (issued after both sides have notice and opportunity to be heard and served; last much longer and can eventually turn into permanent injunctions) NON-COMPLIANCE W/ AN INJUNCTION: Walker v. City of Birmingham (1967): Facts: BHAM officials received temporary injunction of petitioners from participating in parade demonstrations w/o a permit. Petitioners had made request for permits but were denied. Petitioners violated injunction and paraded, the second of which resulted in violence on Easter Day. Motion to dismiss injunction filed after parades. Petitioners found in contempt of court. Rule: In the fair administration of justice, no man can be the judge of his own case. CONSEQUENCES: 1. Criminal contempt: violation of court order is prosecuted as a crime; violation must be proved beyond a reasonable doubt; has right to jury trial if he faces prison sentence longer than 6 months 2. Compensatory civil contempt: court orders to pay in amount to compensate for s violation of equitable decree 3. Coercive civil contempt: impose punishment on in order to ensure future compliance; if you comply, the punishment will stop under these circumstances makes no sense: petitioners are probably happy to comply in the near future since they probably dont have any marches planned 4. Collateral Bar rule: In a show cause hearing, the target of the hearing cant challenge the validity of the underlying decree. The only issues that can be raised are 1. whether there was an order and 2. whether you knowingly violated it. Challenging the order should be done by motion to dissolve the injunction before violation of the injunction. Validity of underlying merits can be challenged at some other proceeding - you should not be the judge of your own case *1. BHAM parade ordinance: Had the petitioners attempted to apply to AL courts for an authoritative construction of the ordinance, courts have given licensing authority granted in ordinance a narrow & precise scope. *2. Injunction: Petitioners should have applied to AL courts to have injunction modified or dissolved in order to raise constitutionality question. *3. Administration of parade ordinance: Had petitioners applied for a permit to the commission or any commissioner after the injunction was issued, and the permit was refused, the claim of arbitrary/discriminatory administration would have been considered by state circuit court upon motion to dissolve injunction. MLKs theory: If judge articulates an unjust law, then I dont have to abide by it The judicial order (injunction) is more sacred than the law (ordinance)o JUSTICIABILITY: requirement under federal law that a case be definite & concrete, that the parties have real and adverse legal interests, and the dispute itself is admitting of specific legal relief through a decree of conclusive character. Doctrines: 1. ripeness: controversy has already erupted; the legal issue is in a concrete contexto Imminence is necessary: Society should not be reactionary but should wait for harm to have occurred Waiting for full-blown injury means you dont have to engage in worst case scenario prediction 2. standing: whether or not has demonstrated that he/she is among the injured. 3. mootness: you have to have standing which continues for the duration of the lawsuit 4. requirement to avoid feigned or collusive cases: must actually desire to assert interest; no test/hypothetical caseso *COSTS OF LITIGATION: Attorneys fees Rule 54: loser pays winners litigation costs under certain circumstances Certain costs: transportation of witnesses, filing fees, photocopying, etc. English rule: fee shifting; encourages lavish spending; exonerated should not be impoverished by the cost of mounting a successful defense; if knows they are bringing a frivolous lawsuit, he wont bring dubious claims; problem: poor people are discouraged from filing lawsuits American rule: parties bear their own cost of litigation and attorney fees; encourages conservative spending; encourages settlement; contingent fee mechanism allows poor people to bring suits. Venegas v. Mitchell (1990): Facts: in the suit and attorney agreed on a contingency fee contract of 40%. Contract allowed attorney to apply for and collect any attorney fee award made by the court, prohibited from waiving attorneys right to court-awarded attorneys fees, and allowed attorney to intervene to protect interest in fee award. Rule: A civil rights is obligated to pay the “contractually obligated” contingency fee, even if the attorney receives a statutory award. Purpose of 1988: for civil rights to secure competent counsel - depriving s of option of promising to pay more than statutory fee would not further the statutes purpose Concept of reasonable attorneys fee is elastic: in this case they used the lodestar method (reasonable rate * hours worked; doubled b/c of competent work by the attorney) American system: law suit must be frivolous in order for the fee-shifting to occur. III. PLEADING: describing & defining the nature of the dispute between parties HISTORICAL EVOLUTION OF PLEADING: o Single Issue Fetish: A case was postured for resolution once the parties were deemed to be at issue. One could challenge technical sufficiency of the complaint (demurrer) or deny substance of allegation (traverse) Lawyer back in the day would try to keep the case at pleading and look for technical deficiencies - cases turned on lawyerly manipulation rather than merits of the case Lawyers would sometimes bet wrong and challenge case on technical rather than substantive merits Writs: One had to fit the case into a specific form of action; choose writ carefully at the outseto Common Law Pleading: Abolishes writ system & eliminates the distinction b/w law and equity Other side must be given notice o FIELD CODE: exists at the state, not federal level - courts fetishize facts & avoid need for excess facts Gillespie v. Goodyear Service Stores (1963): Facts: alleged in complaint “strespassed upon the premises occupied by s residenceassaulted the and placed her in great fearcaused her to be seized and exhibited to the public as a prisoner.” Rule: A demurrer will be sustained if s complaint does not state facts sufficient to constitute any cause of action. Complaint alleges legal conclusions, not facts - Other side must have adequate notice of the nature of the lawsuit Complaint needs: “what occurred, when it occurred, where it occurred, who did what, relationship b/w and or of s inter se.” Fact-specificity: meant to prevent frivolous lawsuits; its hard to prevent stating things in a conclusory manner Lawyers screwed up the complaint: dont want to replead b/c they dont want to admit to that o FEDERAL RULES which govern modern pleading: Rule 4: civil action is commenced w/ filling of complaint Rule 7: defines pleading pleadings consist of a “complaint, an answer, and a reply;” everything else is a motion Rule 8: outlines general rules of pleading 8(a)(2): A pleading which sets forth a claim for reliefshall contain “a short and plain statement of the claim showing that the pleader is entitled to relief. Requirements for specificity in pleading depends on the theory of the case - more specificity if the legal theory is in question. Generality is beneficial b/c you may not know every legal argument that supports your case until you go through discovery; leaves room for the case to grow. Discovery encourages less specific statement of case. Rule 10: describes form of pleading SPECIFICITY Rule 12: o United States v. Board of Harbor Commissioners (1977): Facts: Government states in complaint, “the s, and each of them, own and operate offshore facilitiesfrom which oil was discharged into the Delaware Riveror the s, and each of them, took actions which caused such oil to be discharged.” s filed Rule 12(e) motion for a more definite statement. Rule: It is improper to use a Rule 12(e) motion to obtain admissions from a claimant in the hopes of clearing the way for a later Rule 12 (b)(6) motion to dismiss for a failure to state a claim. Government sues everyone who owns a company on the water - s say this is not specific enough s need more information before filing Rule 8 (b) requires to admit or deny averments upon which the adverse party relies; s are trying to find out what the government knows b/c they dont know if they were the ones caught this time around s motion for a more definite statement is an effort to “flesh” out the governments case Affirmative defense: Act of God caused oil leakage 12 (e): court does not allow it b/c it is harassing to s and wastes time. o Mitchell v. Archibald & Kendall (1978): Facts: shot sitting in his truck after being directed to park truck across the street from the s loading dock. alleges loading dock was an extension to s premises. Rule: Where the refuses to file a Rule 15 motion to amend the complaint, and instead elects to stand on a flawed original complaint, he has relinquished any alternative legal theory on appeal. s fail on the question of law regardless of how it is plead: according to ALI, premises limited to actual property possessed by business Court will not supply w/ alternative legal theory; he must supply it himself Sufficiency of a complaint rests on the sufficiency of some legal theory: s duty to supply a legal theory. ( could have suggested “extended premises” theory; instead, set forth a new theory of liability) Pleading specifically: if attorney is working on contingent fee basis, he will know sooner rather than later whether legal theory will be tossed Pleading generally: force the other side to do more research & delay the case Litigation is organic: you dont know all the details or what the winning argument is up front RULE 9: HEIGHTENED REQUIREMENTS FOR SPECIFICITYo Rule 8 sets out general rules - Rule 9 creates exceptionso Rule 9(b): “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated w/ particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally”o Rule 9 encourages 1. innovation & investment in innovation; absent some sort of check, 2. lawsuits hurt investors in a corporation; 3. reputation interestso Rule 9 tries to limit the in terrorem value of lawsuits: the court wants to throw out frivolous lawsuits; it doesnt like the idea of shareholders being able to cripple companies o Ross v. A.H. Robins Company (1979): Facts: s purchased common stock of company. Prior to close of class period, disseminated statements to investing public detailing safety, efficiency, etc. of Dalkon Shield. s charge that s knew or recklessly disregarded the fact that there were serious questions as to safety and efficiency of Dalkon Shield during class period. s point to study during class period discussing negative side effects. Rule: Where s aver actual knowledge, must specifically plead a factual basis for their conclusory allegations regarding that knowledge, giving a proper timeline. needs to bridge the connection b/w s and negative report; fail to indicate when s