My Legs Civpro Final Outline Outline

1. Intro to Civ. Pro.

• Civil Procedure is: rules and procedures for non-criminal law suits, method by which substantive law is enforced, knowing how to get the court’s attention, how to proceed and how to obtain damages

  1. Concept

     1. Injunction- order from the court to stop someone from doing something

     2. Declaratory judgement- finding of the court

     3. Values furthered by litigation: (1) dignity; (2) participation; (3) deterrence; (4) effectuation

  2. Due Process (Right to be Heard) (Rule 1)

     1. Important Because:

        1. Used when court deprives one of life, liberty, property

        2. Courts have tried to capture due process in federal rules in an aspirational way

        3. Ties into remedies

     2. Values of Due Process:

        1. Right to be heard

        2. Notice

        3. Right to appeal

        4. Neutral/fair decision maker (judge)

        5. Right to representation

        6. Timely decision/timely hearing

        7. Proper enforcement

     3. Not all benefits cases need pre-termination hearing- dependent on the nature of benefit

     4. Goldberg v Kelly (procedural due process re welfare assistance)

        1. The fundamental requisite of due process of law is the opportunity to be heard. The hearing must be at a meaningful time and in a meaningful manner. These principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.

     5. Matthews v. Elridge 3-Part Balancing Test (Due Process)( disability pre-trial necessary?)

        1. Private Interest (what the person being deprived has at stake)

        2. Risk of erroneous deprivation of this interest through the procedures used, and the value of additional procedures(if we use the process currently in place what is the likelihood that we will get it wrong)

        3. Govt. interest in including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

        4. REASONING -

           1. Three factors.

1. The plaintiffs private interest is the uninterrupted recipient of his benefits pending the final admin decision on his claim.

2. The procedures used to determine his benefits with medical assessments.

3. An evidentiary trial might be costly.

2. Remedies and Stakes

   1. Provisional relief:

      1. (1) Securing the judgement (equity)-

1. attachment: refers to real estate (real property).

2. sequestration: personal property/ bank accounts.

3. garnishment: defendants wages.

   1. (2) Maintaining status quo - preliminary injunction

      1. useful when facts in the case are changing rapidly; maintains status quo until there is a verdict

   2. (3) Sequestration- attaches property/funds to property and usually removes property from person in possession pending further proceedings

      1. Helps plaintiffs by: (1) if plaintiff wins, defendant’s resources will be available to collect; (2) puts pressure on defendant to settle by tying up assets

   3. Temporary restraining order (TRO)(equity)- only lasts 10 days

      1. P must show “immediate or irreparable injury, loss or damage”

   4. Preliminary injunction - Rule 65(a)(Walgreen Co.) pg/.130 (Winter v. Natural Resources Defense) important - pg. 117(equity)- goes until merits of case are resolved due to harm being caused -> high burden for plaintiff to meet to obtain

Granted based upon (test):

1. Likelihood of success of the merits (how likely plaintiff will win)

2. Likelihood of irreparable harm

3. Balance of equities tips in plaintiff’s favor

4. Injunction is in the public’s interest

5. Receiver- official designated by court because it is “endangered”

6. Declaratory judgement (equity) (Goldberg v. Kelly)- order from the court declaring someone’s rights

1. Final relief

   1. Permanent injunction (equity)(test):

      1. Damages are inadequate; hard to measure a $ amount

      2. Irreparable injury

      3. Balance of equities

      4. Public interests; deter from committing again in the future

   2. Declaratory judgements: either party can go to court and seek in order declaring that parties right.

   3. Consent decrees: public settlement agreement; forces court order agreement.

   4. Money damages: only form of legal relief

1. compensatory: compensates P for the monetary value of his loss.

2. nominal: symbolic.

3. punitive: D had to act in a horrible, disgusting manor to be awarded this.

   1. Settlement

      1. Consent decree(equity)- when you turn settlement/private contract to judge and it becomes official order

      2. MONETARY DAMAGES:

         1. Compensatory – “make plaintiff whole”

         2. Nominal- “token” damages

         3. Treble- triple damages

         4. Punitive- only given for irreparable harm

3. Pleadings

   1. The Complaint

      1. Plaintiff’s 3 obligations: (1) state in initial pleading that they are entitled to relief; (2) meet production burden; (3) meet burden of persuasion

      2. Conley v. Gibson

         1. RULE: A complaint is sufficient as long as the plaintiff sets forth an assertion upon which relief may be granted, and specific, detailed recitations of fact are not necessary to survive a motion to dismiss

      3. Twombly (rule 8 becomes more fluid/efficient),

      4. Iqbal

         1. Flexible Plausibility Standard: In some circumstances you have to amplify some pleadings/facts

            1. Isolate legal conclusions that do not need to be legally proven

            2. What is left are legal allegations

            3. Review factual allegations and assume them true

            4. If court can determine that the case is plausible it can move forward

         2. Reason for complaint:

            1. Notice- defendant needs to know what they are being accused of/can prepare defense

            2. Public/transparent interest

            3. Helps frame lawsuit

            4. Lawyers don’t waste time disputing things that defendant admits to

            5. Must be able to put into writing what court did to you

         3. Requirements of the Complaint (Rule 8) – NOTICE PLEADING

            1. A pleading...

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