CIVIL PROCEDURE OUTLINE民事诉讼程序概览

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1、CIVIL PROCEDURE OUTLINEWinter 1999BeckermanBy Amy HarwellI. BUFFALO CREEK DISASTERII. A SURVEY OF THE CIVIL ACTION (pg1-20)You can get 3 things from a civil case:1) money2) injunctive relief3) declaratory reliefLawyers get paid: 1) contingency fee, or 2) pd by the hour and a retainerFederal Rules ad

2、opted in 1938Adversarial system (as opposed to the judge finding the facts)1) party presentation2) party prosecution-judge is a passive referee or umpireAdvantagesDisadvantagesboth sides get an advocateIf the judge is lazy, stupidparticipatory quality, more willingLawyers not evenly matchedto comply

3、If parties get involved for someIs the truth more likely to come out?other reason besides the normal onesAmerican Ruleeach side pays its own legal feesEnglish Ruleloser pays the legal fees3 exceptions to the American Rule1) contractural2) common fundfree rider problem3) statutory fee shiftingprevail

4、ing P shall get a reasonable attorneys fee (ex. Discrimination) Rule 1Scope of RulesThe rules are to secure the “just, speedy, and inexpensive determination of every action”Critiques of the federal rules-it takes too long-red tape, bureaucratic-too expensivePurposes of Civil Procedure1) to redress w

5、rongs2) to compensate3) injunctive relief4) to order relationshipsThe problems of moving a lawsuit through has been tremendously increased. Why?1) Federal Speedy Trial Actcriminal cases have to be brought to trial within 180 days, so the civil docket suffers2) Increased use of Federal Sentencing Gui

6、delinesmandatory minimums reduce a judges discretion and put it in the hands of the prosecutors. More likely to plea bargain before. But now, judge cant take the plea bargain into account, so they dont plea bargain and more cases go to trial.Rule 3Commencement of ActionA civil action is commenced by

7、 filing a complaint with the court.Ways to answer a complaint1) deny2) demurrer (say “so what, even if I did all the things you allege, it does not give rise to a claim”) abolished by Rule 7c3) admitRule 7aOnly pleadings allowed (pg20)1) complaint2) answer3) counter claim4) cross claim5) third party

8、 claimIII. NOTICE AND OPPORTUNITY TO BE HEARD (pg182-244)(he jumped around a lot, so when I really study this, I need to read through the section, read my notes, then read another outline or somethinglots of stuff got skipped)A. THE REQUIREMENT OF REASONABLE NOTICEDid the D have adequate notice?If n

9、ot, the case may be dismissedIf not, it violates Due ProcessMullane v. Central Hanover Bank & Trust (pg182)the court required mailed notice to those trustees whose addresses were known; publishing in a newspaper for the unknown is fine. Is notice by publication a violation of due process when the ou

10、t-of-state parties so served are known and have known addresses? Held: Yes. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the a

11、ction and afford them an opportunity to present their objections. The notice must be of such nature as reasonable to convey the required information and it must afford a reasonable time for those interested to make their appearance.” Why do we require notice? (pg12)1) not fair2) dont want to have to

12、 try it againwithout notice, judgment is not valid3) one way to get jurisdiction over a personEx partewithout notice to the other sideMcDonald v. Mabee (pg188, note2)He left the state, so newspaper publication doesnt get to him. Not good enough. Wuchter v. Puzzutti (pg189, note3)long arm statute inv

13、alidated because it did not expressly require the Sec. of State to give notice. But D knew, and SC still invalidated. Why? They want consistency and official standards set in place.Greene v. Lindsey (pg190)posting on the door is not good enough notice.B. THE MECHANICS OF GIVING NOTICERule 4Summons4(

14、a)Summons has to look formal and official, cant look like a letter4(c)(1)you serve a summons and a complaint4(c)(2)must not be a party and at least 18 (dont want sewer service)4(d)Waiver of serviceit becomes effective when they return the waiver of service formsWays to encourage:1) shift cost to D (

15、stick)2) you get 60 days, instead of just 30 to answer (carrot)Can you refuse to waive without having to pay for service?Tickle v. Barton (pg22) (pg18)-D was tricked into the jurisdiction. Ct. said the service is invalid; you cant trick. Is service of process valid when the defendant was induced to

16、enter the county in which he was served by an unauthorized invitation to a banquet by the Ps attorney? Held: No.Maryland State Firemens Assoc. v. Chaves (pg196)Chaves knew, court still held service was invalid. Want a bright line rule. Natl Equipment Rental v. Szukhent (pg203)Clause said, “lessee he

17、arby designates Florence Weinberg for NY service”. Even though Ds did not know her, the court held the clause was valid. Blacks dissent says that every big company will put these in and the little guy will never know if they are being sued. Is a person an agent by appointment who was designated in t

18、he litigants private contract as agent to receive service of process, even though he is not personally known to the litigants and is not expressly required by the Ks terms to transmit notice to the parties? Held: Yes.Held: C. IMMUNITY FROM PROCESS AND ETIQUETTE OF SERVICEState ex rel. Sivnksty v. Du

19、ffield (pg213)didnt want to talk about it. Is a non-resident immune from process who voluntarily enters a county with the intent of remaining for a few days, but is then put in jail and is served with process in a civil action while he is incarcerated? Held: No.Wyman v. Newhouse (pg216) (pg24)-P tol

20、d D to come from Utah to Florida, I want to see you one last time. Fraud affecting a jurisdiction is equivalent to a lack of jurisdiction. Will a sister states courts enforce a judgment procured in another state by fraudulent service of process? Held: No. Which is a better case for quashing service,

21、 Tickle or Wyman? Wyman because she had never even been to Florida.Can you waive notice entirely? See pg25. Not per se unconstitutional, but highly suspect.D. OPPORTUNITY TO BE HEARDPrejudgment Remedies(pg25)Due process question because you lose your property without a hearing.Kinds of prejudgment r

22、emedies1) garnishmentbank account, wagesany property in the hands of a third person2) replevinrepossesses and turn over to applicant3) attachmentseizureofficer of the court takes possession4) sequestrationsynonymous with attachment5) temporary restraining order6) preliminary injunctionno limit to du

23、rationcan obtain without notice to adverse partyjust means before trialrule 65(a)(1) and rule 65(a)(2)7) receivorshipdeprives owner of usecompanies8) civil arresthes never seen it usedWhy do we need prejudgment remedies? a) Protect property from being removedb) Protect property from being destroyedc

24、) Preserve the status quod) (intimidation)lis pendens or (notice of pendency)put something in the land records and no one will buy it if someone has a claimaffidavitsworn statementIt will be in the form of a motion:1) notice of motion with a particular date and putting it on the court calendar2) fac

25、tual showing to why you need itaffidavits3) a briefTo get a temporary restraining order and prelim inj:1) irreparable injuryharm that cant be compensated later, extingent circumstances, urgencya) whats the big dealb) have you attempted to give noticec) if not, why notd) whats going to happen if you

26、dont get it2) likelihood of success on the merits3) balance of hardshipFuentes v. Shevin (pg219)Sheriff seizes a stove and stereo bought on credit. Are state statutes that fail to provide for a hearing before a creditor can replevy goods from a defaulting debtor unconstitutional? Held: Yes. “The min

27、imal deterrent effect of a bond requirement is no substitute for an informed evaluation by a neutral official”. Informed is the key, both sides and they want a judge.Mitchell v. W.T. Grant (pg229) (pg31)the Court upheld a Louisiana sequestration procedure that provided for dissolution of the writ up

28、on the debtors request, unless the creditor could prove his grounds and post a bond.North Georgia Finishing v. Di-Chem (pg231) (pg32)a Georgia garnishment procedure was struck down because there was no hearing, no notice, and the debtor could recover his property only by posting a bond for the debt

29、amount.Connecticut v. Doehr (pg233)most recent pronouncement by the SC. Does a state statute that authorizes prejudgment attachment of real estate without prior notice and without a showing of extraordinary circumstances, violate the Due Process clause? Held: Yes.IV. ENFORCING JUDGMENTS (pg1079-1106

30、)All the prejudgment remedies are converted to post judgment onesGriggs v. Miller (pg1090) (pg38)Sheriff sold entire farm to pay for the one judgment for Crouch. Only two bidders. May a sheriff sell property in excess of the amount needed to satisfy the judgment? Held: No. Ct. said “A failure to div

31、ide real estate and sell only enough to satisfy the execution has been considered an 1) abuse of discretion and a 2) constructive fraud”. (pg1092) More on pg40 and depo stuff on 411291Final judgment rule. If its not final, it cant be appealedReeves v. Crownshield (pg1100)garnishment of wages. Does a

32、 statute unconstitutionally provide for imprisonment for debt where it permits a court to order a judgment debtor to make payment out of income and where refusal to pay after such an order is punishable by contempt? Held: No. Ct. says the jail time is okay because it was in disobedience of a ct. ord

33、er. Is this distinction persuasive?Lienan interest the law will recognize. An encumberance/a security interest. Have priority over unsecured creditors in bankruptcy.Choateidentify which property the lien is against. Creditor has taken the proper steps to get his money. “perfecting your security inte

34、rest”UCC 9-302 through 9-306Matter of Fornabai (pg1103)Issue is who has priority for payment. Must a writ of execution be instigated in order to secure the substantive right of a judgment lien? Held: No.V. DEVELOPMENT OF MODERN PROCEDURE (pg446-492)VI. PLEADING (pg493-582)A. THE COMPLAINT1. Detail R

35、equired Under the CodesGillispie v. Goodyear Service Stores (pg494)Is the complaint legally sufficient? Trial court said it was not sufficient and dismissed the complaint with leave to amend. So P could file again, but chose to appeal. SC affirmed. Complaint contains legal conclusions. Where a compl

36、aint merely alleges legal conclusions by not the factual data on which these conclusions are based, should a demurrer be granted? Held: Yes. Is it significant that there was no SJ in NC? It would have gone to trial because no other way to dismiss the complaint, so it may make more sense to have tigh

37、t rules for pleading.McCaughey v. Schuette (pg496)-P won at trial, D won on appeal. So you cant plead legal conclusions (Gillispie) And you cant plead probative facts (McCaughey)Are these legal conclusions or factualsee (pg45)Traditional Functions of PleadingsWhat function in the lawsuit does a fact

38、 specific pleading serve?1) notice of the claim to the D2) narrow the issues in the lawsuit3) identify and dispose of groundless claims4) set forth each parties view of the facts5) guide the parties and the court in their conduct in the caseBut several of these are better served in other parts of th

39、e federal system, so the Fedl Rules change it. A short and plain statement only gives us 1)notice (pg47)2) narrowing issues? discovery3) get rid of baseless claims? SJ, pretrial conference4) commit to positions? Depositions, discovery, interrogatories5) may still guide the parties because it is the

40、only thing out thereA vague complaint favors the P; a specific one favors the D. P can change the case, and its harder to get rid of the lawsuit2 mechanisms to dispose of groundless claims:1) Rule 12(b)(6)Motion to dismiss for failure to state a claim upon which relief can be granted.2) Factuallya)

41、Rule 56Summary Judgmentb) Rule 50Motion for judgment as a matter of law.(used to be called: 1) directed verdict and 2) j.n.o.v.)Rule 15Amending complaints2. Detail Required Under the Federal RulesDioguardi v. Durning (pg500)Complaint was home drawn and did not state who, what, when, why, or where. I

42、s a complaint containing a short and plain statement of the claim asserting that the pleader is entitled to relief, but not stating the facts sufficient to constitute a cause of action, adequate under the federal rules? Held: Yes. Pro selitigants without lawyers. Court would dismiss it if it were do

43、ne by a lawyer, but has a const. right to appear pro se.Degree of specificityForms 3-18So now we have notice pleading, not fact pleading. It is exemplified by Dioguardi and Conley v. Gibson (pg502).Rule 12(e)Motion for a More Definite Statement2 contradictory legal traditions in pleading today:1) al

44、most everything is okay (pleading is sufficient unless the P can plead no facts upon which relief will be grantedDioguardi & Conley line of cases)2) pleader must plead the essential elements of the claim (pleaders should allege, even if sketchy circumstances that might be true and if true, will give

45、 relief.Why do we allow conclusory pleadings?AdvantagesAvoids the risk of deciding cases on a technicalityAllows those who may not know the details to use discovery to find out DisadvantagesIf claim is no good later, time consuming and expensiveIncentive to settle claims even if they may think theyd

46、 winEncourages the plaintiff to bring unmeritorius lawsuits to induce settlement (strike suits)Robinson v. Board of County Commissioners (pg499)Held that this stated a cause of action, but it seems just as conclusory as the dismissed ones.(Rd over the differences later)Plead more specifically than w

47、hat is requiredwhen? When you want to tell a story (so newspapers will understand and pick it up)Two reasons not to plead specifically:1) That your adversary will test the legal sufficiency of your claim (huh)2) Cts. tend to expect proof of everything in the complaint.See the problems, (pg504) (pg51

48、)Lodge 743 v. United Aircraft Co. (pg505)-P says they are violating the strike agreement. D moves for a more definite statement. P says they cant without discovery. Ct. says they have to make a more definite statement after discovery. D could have answered itthey wanted the more definite statement t

49、o narrow discovery and make it easier.3. Pleading the Right to ReliefRule 8(a)Claims for reliefneed a “short plain statement of the claim showing that the pleader is entitled to relief”Garcia v. Hilton Hotels International (pg506) (pg52)P claims he was defamed. He was fired, accused him of starting

50、prostitution in the hotel. D moved for 12(b)(6) because he left out an element of defamation. Does failure to specifically allege an essential element of the cause of action require that the complaint be dismissed? Held: No. More on this case pg53Case v. State Farm Mutual (pg26) (pg54)Dct granted th

51、e motion to dismiss. Did the DCt improperly construe the language of Ps complaint? Held: No. Dismissed because the K was terminable at will. No wrongful termination claim In Conley, we learned you dont grant motion to dismiss for failure to state a claim upon which relief can be granted unless there

52、 is no set of facts upon which relief can be granted. Test of legally sufficient depends only on the complaint What do my notes mean when they say Then look at it as a motion for SJ, see rule 12, pg40? See the commentary on pg55P has two choices if dismissed:1) amend2) appealif P loses in the appell

53、ate court it is considered adjudication on the merits (res judicata)Alexander v. Kramer (pg39) (pg56)Is D bound by a clearly erroneous charge to the jury merely because D failed to object to the charge as made? Held: Yes. The judge ought to have the opportunity to hear the objections and correct bef

54、ore it goes to the jury. Rule 8(c)Affirmative Defenseswhere does the burden go? There is more in my notes on this pg57 Rule 51Instructions to Jury: Objectionthey did object, but just not at the right time. Is this a good rule?Burden of Proof (pg510-511) (pg58-60)1) Burden of Persuasion-P usually has

55、 it, doesnt shift back and forth.2) Burden of Productiondoes shift back and forth.Ex.in Alexander, D had burden of pleading, P had burden of persuasion.What factors does the law take into account in allocating the burden of persuasion?1) Party who pled affirmative defense had burden of persuasion.No

56、t helpfulnegative and positive assertions can be phrased either way2) Burden of persuasion was placed on the party to whose case it was essentialNot helpfulmay be essential to both3) Party who pleads it has to prove it.Makes you plead sparselyWhat factors ought to be used?1) Person who wants to rais

57、e the issue2) Person who has knowledge of the issueex. Mailbox rule3) Person who is claiming wrongfulnessex. Fraud, defamation, assault4) Probabilityalleging something unusualex. I allege it is a gift and painter wants to be paid. I should have to prove it. Flip sidefamilies dont usually charge.5) S

58、ubstantive considerations of policyex. Contributory negligence is increasingly disfavored. So they are putting the burden of per on the D.4. Pleading Special MattersRule 9Pleading Special MattersDenny v. Carey (pg512)Class action, securities fraud. Must a complaint based on fraud specifically allege

59、 facts constituting fraud on the part of D? Held: No. Judge said this pleading was fine. But in Denny v. Barber (pg514), a case with almost the same facts, the judge said that the complaint was not fine (compare them)Avermentassertion of factAllegationassertion of lawStates of mind- negligently- rec

60、klessly, wantonly- knowingly- intentionally, willfully- maliciouslyRule 9(b)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 pers

61、on may be averred generally.Why do we allow states of mind to be averred generally (in Rule 9b)?1) impossible to get inside someones head2) difficult to prove the farther you go down the list.Why should fraud be pleaded with particularity? 1) To protect Ds reputation.2) Keep Ps from getting into wid

62、e discovery3) So people wont try to transform what is a K claim into a tort claim (huh)Does Carey conform to Rule 9(b) or is the judge just letting go? Does 9(b) mean anything after this? This allows P to go into Ds records to search without specific instances in mind. Incentive to bring strike suit

63、s and to settle even if innocent.Millar v. Differential Diagnostics (see handout) (notes pg62-65) pro hac vicethis way they can make you associate local counsel.With prejudiceno leave to amendWithout prejudicewith leave to amendWhere should we draw the line between dishonest speculation and honest uncertainty? Put it on the lawyeryou have to sign it saying t