Civil Procedure Notes Page 1
LAW 5301 (4 credits)
Professor Pedro A. Malavet
This page contains the "slides" I used in class during the first few class sessions. In order to keep the files as small as possible, whenever I have mentioned a Federal Rule of Civil Procedure or statutory or constitutional provision, I will only give you the citation. However, occasionally, I will excerpt the text from those rules that I consider to be particularly important, as well as any annotations I may insert in it. I have also included herewith particularly important passages from some of our cases. My own questions and additional comments will usually be highlighted in red.
All the html documents with class notes, as well as all supplementary files (mostly graphics), are now in a single subdirectory. You can copy the contents of the subdirectory http://nersp.nerdc.ufl.edu./~malavet/civpro/notes.
I have chosen to change my approach to this material by organizing the notes by sections of the Syllabus, rather than by date. I will continue to update the session number and date in the interactive Syllabus.
Introduction: Dupont Handout, FRCP 1, 2
Introduction and discussion of DuPont handout (Handout No. 1).
Federal Rule of Civil Procedure 1 (Hereinafert "FRCP").
. . . They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
Rule 2. One Form of Action
There shall be one form of action to be known as "civil action."
DUPONT: Important Facts
12/31/86: FIRE: 97 dead 140 inj.
1/87: FIRST SUITS
5/12/89: 1st TRIAL (Settled)
9/28/90: 2d TRIAL (Verdict)
7/21/91: $220 Million Settlmnt. to 2,411 plaintiffs
'91-'96: Attorneys' Fees of $68 Million for plaintiffs' lawyers
December of 1998: The final settlement checks are distributed
1. The Adversary System 1: Band's Refuse , 1-18
FRCP 1: Scope and Purpose of Rules
These rules govern the procedure in the United States district
courts in all suits of a civil nature whether cognizable
as cases at law or in equity or in admiralty, with the exceptions
stated in Rule 81. They shall be construed and administered
to secure the just, speedy and inexpensive determination of every
Hopefully, throughout this semester, we will study why the last sentence of Rule 1 is not a joke. It is just easily misunderstood.
Rule 2. One Form of Action
There shall be one form of action to be known as "civil
Defines legal rights and duties in everyday conduct.
Sets out the rules for enforcing substantive rights in the courts.
SUBSTANCE vs. PROCEDURE? Some difficult cases.
Statutes of Limitation?
Choice of Law?
Service of Process?
SUBSTANCE vs. PROCEDURE
"If it affects the outcome of the case, it is substantive."
Guarantee Trust (Modified, but not completely abandoned in Byrd, Hanna. Turns into a series of balancing tests.)
Statutes of Limitation? "Substance" Guarantee Trust v. York. Choice of Law? "Substance", Klaxon v. Stentor
Service of Process? "It depends." Hanna v. Plummer
Naturally, telling the difference between "Procedure" and " Substance" is not always easy. The question is, why are we bothering to make the distinction.
STAGES OF THE CASE (Based on Band's Refuse).
Controversy Prior to filing.
3. Intervention Motion
5. Answer to counterclaim
6. Amended Complaint
7. Answer to Amended Complaint.
9. Pretrial Order
10. Appointment of Amicus
11. Motion for Recusal
13. 2d Amended Answer
14. Mistrial Motions
Band's Refuse, p. 5
In discharge of his duty, as he conceived it, the trial judge addressed letters to various counsel demanding the production of certain witnesses and records, thus reflecting a prior partisan analysis and preparation of the case normally considered the exclusive function and legitimate interest of counsel representing the respective parties.
Band's Refuse, p. 9
The function of a trial judge is to serve litigants by determining their disputes and the issues implicated therein in accordance with applicable rules and law. Established procedures lie at the heart of due process and are as important to the attainment of ultimate justice as the factual merits of a cause. A judge may not initiate or inspire litigation and, by the same token, he may not expand a case before him by adding new issues which come to mind during the trial, without giving the parties affected a full and fair opportunity to meet those issues.
NOTE 1, P. 11
-complaint filed by plaintiff Band's (FRCP 8(a));
-answer filed by defendant Fair Lawn, five separate defenses
-motion of the Capassos to intervene as defendants granted (FRCP
24); -answer and counterclaims filed by Capasso (FRCP 8, 13);
-plaintiff permitted to file an amended complaint after Grand
Jury issued indictments (FRCP 15);
-discovery conducted by the parties, including interrogatories
requesting identity of witnesses (cf. FRCP 26, 33);
BAND'S REFUSE, NOTE 1, P. 11
-pre-trial hearing (cf. FRCP 16, 26(f));
-judge appointed amicus curiae to present evidence, subpoena
and examine witnesses, and submit briefs (cf. FRCP 53);
-trial held (cf. FRCP 38-52);
-judgment entered (cf. FRCP 54(a); 58);
-appeal taken (cf. Fed.R.App.P. 3; 4).
Note how this outline gives you an overview of the entire civil process, as it is controlled by the Federal Rules. It is a perfect roadmap for our course.
Filed November 25, 1957
Appeal: July, 1960
GROUNDS FOR RECUSSAL EXIST:
Only if the judge displays deep-seated favoritism or antagonism towards a party, which would make fair judgment impossible.
FRCP 16: Pretrial conferences; scheduling; management
(a) * * * in any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as
(1) expediting the disposition of the action;
* * *
(5) facilitating the settlement of the case.
(c) * * * at any conference under this rule consideration may be given, and the court may take appropriate action, with respect to * * *
(9) settlement * * *;
FRCP 16 (f) Sanctions.
If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made ***, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, * * *. In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, * * *.
NOTE 4 PAGE 22:
1) TRIAL: less than 8% of cases filed went to trial,
2) NO TRIAL: 92%, the remainder being settled or resolved by the judge by dismissal or summary judgment.
3) NO FILING: Indeed, most grievances in our society never enter the litigation system at all. A survey of 5,000 households showed that in only 71.8% of grievances was there an informal complaint to the allegedly offending party, that a dispute arose in only 63% of these situations, and that only 11.2% of these disputes resulted in the filing of a lawsuit.
Against Settlement, 93 Yale L.J. 1073 (1984), Professor Owen
I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets. Settlement is for me the civil analogue of plea bargaining. * * * Like plea bargaining, settlement is a capitulation to the conditions of a mass society and should be neither encouraged nor praised.