Civ Pro 1- Class Notes PDF

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Civ Pro Class Notes 8/25/2020  

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Tom Petty learn to fly What is civ pro? o Addresses all matter of disputes o About who can be sued and where the thing should be sued o Bring the suite you are the palintiff suing defendant is who is being sued o Cant be prosecuted 2nd time because of double jeopardy-oj simpson  No bar against multiple suites for one on the civil side just rce judicata and o State court  Court of gen jurisdiction\ o Fed  Specific jurisdiction o What and why of non crim litigation o Terms  Res judicata  The matter is already decided o Truth and legal truth law school about legal truth 7 ½ proven disbute methods o Yell and scream lol\ o Grin and bear it o Informal norms  Letters signals etc o By reference to a particular set of explicit rules  Umpires o Arbitration  People want to do this cause its faster, cheaper and can control the arbitrators o Mediation   Not binding- if you disagree with mediation you can go to court  Most common in divorce cases o Litigation  Where only 2% of civil cases go to trial and even smaller precent is appealed o Legislative change (This is the hald method )  Powerful interests often seek to share or forestall Four Inter-related Themes o 1. Procedure as fairness  how do we promote fairness and an opportunity to be heard within our legal rules  can also inhibite fairness questions of power, equity, justice which are all generated by rules of civ pro  poor p sues rich d

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 due process of law  think about the rule that will produce the fairest outcome most times o 2. Specialization/roles  The legalprofession is a largely self govenerned discipline; the rules are important and it is critical to speak the language of litigation o 3. Globalization  Transactional litigation and forum shopping are increasilgy common  What it means to take cases in us that could be relsolved in other places o 4. Efficiency  When is delay preducial  Not a big prob in wy but when it takes years to get someone to decide the case that is an idictation of failure  In india it may take 20+ years to get civil case heard Legal plurism o Multiple legal realities A caution re litigation o Discourage litiligation persuade your nehibors to compromise whatever you can. Point out to them hiow the normal winner is often a loser in fees expenses coast and timelincoin

8/27/20 

Judgement and Seizures o Sezuire cases  Fuentes v shevin  Private litigants having the state (Sheriff) goes and takes the disputed private property in question and seize it pending a legal action to determine who owns or has greater uintrest in the property  Not a claim brought to the judge but actually the clerk.  Fundamental human rights issue  Doesn’t want to pay payments on a broken stove, has service plan and she is waiting for them to fix it so she decides not to pay so her property is reprocessed for payment.  No notice this would happen and no chance to contest this.  14th amendment her argument  100% deprivation even though she owns 70%  Lack of pre-seizure hearing  Dissent- white o Having notice before the writ would not have changed or stopped the repossession  Unconstitutional o Lack of presezuire hearing o fairness  Mitchell v w.t. grant co  Constitutional

Lousisana statute requires specificity, an expeditious hearing, and because the judge not the cleark issues the writ. o efficency North ga finishing co v. di-chem inc.  Unconstitutional o Because ga garnishment statute has none of the saving charectoristics (no bond no need for personal knowledge of facts, writ issues from clerk, no provision for an early hearing) o fairness Conneticuit v doehr  State statute is unconstitutional o Where it aythorizes prejudgment attachment of real estate without prior notice of hearing, without a showing of extraordinary circumstances and without a bond. o Fairness o Specialization o Reasoning:  The state tstaute is unconstitutional where it authorizes prejudgement attachement of real estate without prior notice of a hearing without a showing of extraordinary circumstances and without a bond How do we square these cases with the 14th amendment? “no state shall make or enforce any law (which shall) deprive any person of life, liberty, property, without due process of law” All cases- whether there is a fair equitable fair just system for adjudicating these types of cases. o

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 9/1/20 

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Why bring a suit o To win a declaration that you have been wronged- gateway o legal benefits o To name and shame the wrongdoer and perhaps deter further bad behavior by the defendant or others o To compensate the wronged party with money for their losses o To stop an imminent harm for occurring o To secure collateral or a monetary interest o To enforce a judgment o To compel effectuation of a constitutional statutory or contractual promise o To vindicate a position or receive public acknowledgement Carey v. Piphus o Facts:  Plaintiffs were suspended from public schools and claimed their civil rights had been violated. Plaintifs sought compensatory damages for the section 1983 violations and deprivation of due process

Holding:  Plaintiffs were deprived of their right to procedural due process o Reasoning:  The suspension from school implicated a property interest that may be vindicated through a civil rights suit. But because no actua; injury was shown, plaintiffs can only recover nominal damages o Rule:  Due process violations are remediable but may only request in $1 damages. It is a symbolic, not monetary victory. Smith v. Western Electric o Fcats:  Plaintiff sought an injunction to stop co workers from smoking in the workplace. Dfendnat argued the case was precluded by OHSA o Procedural posture:  Case had been dismissed by lower court o Holding:  Plaintiff is entitled to seek equitable relief o Rule:  An injunction is appropriate to stop irreparable harm Vegas v Mitchell o Facts/ issue:  Plaintiff hired Mitchell on a contingent fee basis to recover for a civil rights claim + attorney fees. Mitchell didn’t do much butr still sought his fee. Was it reasonable? o Holding:  Yes. Courts are loathe to revisit private legal arrangements o Plaintiff agreed up front and there is no reason to cap attroneys fees even if they look unreasonable aafter the fact o Rule:  This is an example of a self governed profession Civil action o 1. What are the plaintiff’s needs?  o 2. What is Schlichtmann’s interest  o 3. What do the defendants want  o 4. What is best for the system of civil adjudication o

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9/3/2020 

Why anne is perf plaintiff o Caring mother with dying son o White woman

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o Not opportunistic outsider o Upstanding member of the community o Has paster helping her sue Slichmtamm is a story teller and offers a remedy is his secret weapon In civil lit settle early or win late Zuk v EPPPI o Missed statute of limitation by 12 yrs  Meritless case

9/8/2020 

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1. Fairness- procedure has access to justice o Anne has access to justice problem because she can not afford an attorney but the dfendnats don’t have an access to justice prob. Rich parties know how to defend their interests (slow things down, protect interests, sequester assests, we have the ability for poor and indegent plaintiff to use the contingent fee system to bring individual claims. This is self help not teplying on gov to act in their interests 2. Specialization in roles o Laweyrs a judge and a lot of experts helping to navigate, articulate and adjudicate a civil claim. Our system anne Anderson is not entitled to a lawyer for her civil claim. If charge serious crime criminally you get a lawyer by right but for civil. Jan schilitman is good at consumer protection, wrongful death, class action suits and is not scared to go to court. Hes ood at telling the story, art of persuasion is about story telling. Specialization is knowing what your skill set is and using it in that particular part of law. Jan schiltman knew about personal injury law but not eviormental. He would be hired today as the trial voivce because he can dominate at court. Class action, joinder all enable jan to bring the claim but he is not a specialist in this area. Facher nor cheesman are speciality eviormental lawyers but don’t have to be because motion and trial expertys so they can learn on the fly how to defend and benefit their clients. Specialization becomes a bigger need, self regulation (test) point to claims that the lawers are trying to assert and think about rule 11 saga and how much regulation skinner will exercise. Nobody outside of the group of lawyers care about the rule 11 mean sanction. Has to be extreme before bringing a ruile 11. Initiated by opposing counsel. 3. Globalization o Civil is a local controversy and plays out in the 80’s and fair to say we were less globalized and connected world when it comes to litigation.  1. Charles Anderson moves to Canada for a job which creates diversty questions case he is no longer a plaintiff cited for legal purposes in massechusetes.  2. Grace and b are big us corp. but don’t have to be to be defendnats in this case. Lots of their share holders aren’t American. Q to consider is whats happening legally to the entity in witch we own shares. In litigation you need to know exactly where you are you need to know what legal system. Both parties are invited to give teir sides. Its battle of experts norm better paid expert to win. But luckily jan is okay with spending money finding experts cause he has passion. Getting highly paid experts to say something doesn’t get you to truth

just legal truth. TEST- in what ways doe we apply to themes to the course to our central text. Touch on these themes 

o 4. Kk Personal jurisdiction o Personal jurisdiction is defendant focused analysis whether plaintiff can choose which court they file in to try to get d there. Whether its fair and appropriate to sue a d in a given court. In civ action its easy cause in today standard we want to know min contact if d is where they suew. o What is the constitution bases for personal jurisdiction o How and where p should be suing defendnats o Pennoyer v. neff  Facts:  2 consitutional features that constrain and enable litigation o Due process clause: a limit on st authority to hear cases involving certain defendnats o This is the conceptua and doctrinal description  Default jusgement; sheriffs sale to Pennoyer  Pennoyers defense: no ejectment; my land see deed from sheriffs office  Neff’s response: dfendntas bad b/c deed invalid because…  Holding:  It follows from the views expressed that the personal judgement recovered in the state court or Oregon against the plaintiff herein then a non resident of state was without any validity and did not authorize a salwe of the property in controversy” o So at min Pennoyer stands fir proposition that under certain conditions judgements entered without jurisdictiuon are not entitled to full faith and credit  What is adequate notice  Something wrong with procedure that allowed Mitchell to get judgment against illiterate neff against the unpaid legal bill to buy property and sell it o Pennoyer as oractice  In first action, Oregon could have obtained personal jurisdiction over neff if…  Had he had been served with process in the state o Pennoyer as doctrine  Judgement entered without jurisdiction not entitled to ful faith and credit  And therefore subject to collateral attack  Assertion of jurisdiction can be challenged directly under due process clause  And why is this due process question  What kind of process o Procedural due process (eg conneticuit v doehr)  Anything Or can do to fix this  Do more t o notify the judgement deter that they owed money

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Some k=other kind of due process  Substantive due process (this geos too far)

Pennoyer as a universal prob  Every legal system reconizes that its bit competetent to handle every dispute …..slide change look em up Pennoyer as practice  There is jurisdiction if..  D served with process while present in state  Property in state attached before suit  Statuts adjudication of a state resident  Valid statute required submission to jurisdiction as a condition of doing business in state. Pennoyer as a holding  It follows from the views expressed that the personal judgement recovered in the state court or Oregon against the plaintiff herin then a non resident of the state was without any validity and did not authorize a sale of the property in controversy  In Pennoyer court conscerned with 1. Adequacy of notice the d should find out about preceedings in order to allow him to defend but because  He could have won personal jurisdiction over neff is…  1. He had been served with process in the state  2. His property had been attached before lawsuit  Power is also important. The jurisidtcion is the power to say the law the court wants to know if it can control the actions of the defendant.  His property had been attached before the lawsuit  Lesson from p os if out of state d you challenge proceedings against you in diff state Hess v. pawloski  It’s the defendants choice to enter MA  Its implied consent  Its 50 years later  Its about cars

9/10/2020 

International shoe v. Washington o Volume of contacts o Systematic and continuous nature of contacts o Balance of conveniences o State interest in opening courts to its residents o Location of witnesses and evidence o Relation between contacts and the claim o Whether the defendant derives benefits from contacts with state o Whether defendant could forsee suit in the forum

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Issue spot: ***** Texas skier hits wy skier and wy skier will sue here in wy because you rely on state to protect wy resident interests ? trigger min contacts. Whether the state in question has a long arm, statute- most states do. Pulls out of state defendants into courts of given state to answer for their conduct (incredibles mom)

9/15/2020 

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Int show min contacts refined o Min contacts  Purposeful avialment  Subjective or mental state question. If d was intentionally engaged in given state they are on the hook.  Fair play and substantial justice  Foreseeability o Relatedness of contact and claim o Convience o States interest Gray v American Radiator o (50 shades of grey)   Holding:  Jurisdiction is proper since it is a reasonable inference that titans commercial transactrions result in substantial use and consumption in llinois. States long arm upheld  Wy has a long arm statute  State courts political animals- alo of state court judges are elected and stand for retention and are responsive for political interests of their states. Very few st have fully appointed judges and none have lifetime tenure like fed judges because of this. Both the politics of state we are in and internal political reality of jurisdiction of where you are litigated. (P politics= recognizing political eviorment [forum shopping]) (p politics= World wides Volkswagen o Personal jurisdiction (don’t side always with d or p. make argument with stream of commerce or purposeful availment for d on test)

9/17/2020 

Wwvw to mcintyre (personal jurisdiction elebroated) o Stream of commerce** o Reasoning; primary concern is burden in defendant but also forum states interest o Plaintiff interest in effective and convient relif o Interstate judicials system interest in obtaining the most efficient resolution of controversiers o Several states shared interest in furthering fundementak substantive social policies o Beacyse petitoners have no contacts ties or relations with the state of Oklahoma the judgment of the supreme court of ok is reversed

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o Anaylsisi pits pro plaintiff stream of commerce v. ppro defednat purposeful availment Calder v jones o Shirley jones is cali resident o D claim they are fl residients and cant be sued in cali. They also argue that as media d personal jurisdiction should be more circumscribed in defamation case to adocid chilling first amendment interest o Holding:  Courts finds that personal jurisdiction exists o Reasoning  The fla d satidified min contacts because they could reasonably anticipate having to defend in cali Burger King Rudzewicz o Bk is fl corp. bk sues Michigan franchise in fl. Defendnats contend they cant be sued there o Holding:  Court finds that personal jurisdiction over Rudzewicz exists o Reasoning  R could reasonably have anticipated being sued therte. Fl has legitimate interests in adjudicating the claim Asahi metals o Z sued cali st for injuries sustained in a motorocycle accident o Asahi metal objected to jurisdiction o Holding  Court agrees with defendant that there is no personal jurisdiction o Reasoning  It was unreasonable to hale asahi metals into court . this case appears to announce the stream of commerce +) standard (+ is for forgein manufactereres) McIntyre v. Nicastro o Nicatsro injured by mcintyre machinery in nj. Nicsatro sues in state court for product liability. Mc objects to jurisdiction since it doesn’t directly advertise in send goods to or target the state o Holding:  Court agrees with defendant that there is no personal jurisdiction o Reasoning  Despite the fact that mcintyre sells machine in the us and attends trade conferences in the country that conduct doesn’t constitute purposeful availment. The new standard is more than entering goods into the global stream of commerce. It is stream of commerce + knowing or should know of use (particulary for forgein parties) Test q about what we agree or disagree with (a lot of people use mc nicsatro) but could be a test question. You really need to use th opinion and reason for persuasion on whats a proper discussion

9/22/20

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When does a cotate court exercise of jurisdiction comport with due process o Consent by the defendant within the ….. E commerce o Zippo holding  Court distinguishes posting cases from purchase cases  Information or ad oposted on web: jurisdiction does not exsit merely because someone in Pa reads it  But when site permits business transactions ie ordering or downloading of programs after exchange of information between site owner nd consumer, jurisdiction may be permitted.  Sliding scale: passive, interactive, business orientedb In order to sustain asuit against d must shoe subject, proper venue and ? jurisdiction. Jurisdiction over persons or things o In personam jurisdiction  Jurisdiction over a person (and it’s the defendant we worry about)  General in personam jurisdiction o In rem jurisdiction  Jurisdiction over a thing  Most commonly used to resolve titlw issues  Most commonly used for ships (admiralty law and real property o Quasi in rem jursidtion  Jurisdiction through the attachment of a thing The absorption of in rem jurisdiction o Shaffer v heitner  Jurisdiction challenged  Response to jurisditionl challenges  1. Attachment violated due process o Del not a problem bc fn 23 of fuentes permits attachment without notice to achieve jurisdiction  2. Regardless of notice or hearing unfair under shoe to assert jurisdiction under these circumstances o Del- quasi in rem attachment authorized by Pennoyer o Ussct:not anymore.  Killed in rem jurisdiction o Burnham v supriror court  9-0: jurisdiction in CA  4-4-1: why theres jurisdiction in ca  Justice scalia- because weve always done it that way and Shaffer didn’t change the way we think about this

9/24/2020 

Int shoe and min contacts************* TEST whwther a given state can exercise jurisdtcion int shoe min contacts!!!!

Business judgment rule applies to directors-bar ex write what you know in recognizable words DEVIL WENT DOWN TO GA GOOD YEAR v brown o TEST!!! Pomit to csse BOUT GLOBAIZATION SAY GOODYEAR CAUSE CO IS INTERESTED...