Federal Lawsuit Filed by Philadelphia Lawyer - DOC by pho75120

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									Civil Procedure: FALL 2002 STEZEWSKI

I. Overview of procedure
           a. The idea and practice of procedure
                    i. Residence v. site of claim of occurrence
                   ii. Procedural flexibility: allows lawyers to fix procedural mistakes
           b. Where can a lawsuit be brought?
                    i. Subject Matter Jurisdiction
                           1. legal authority to hear claims on a specific matter
                           2. Article III Section 1
                                   a. Section 1: Justices of Sup Ct serve for lifetime
                                   b. Section 2: federal cts can hear disputes b/w citizens of different states
                           3. 28 USC
                                   a. § 1332: damages must be >$75000 to be heard in federal courts
                           4. Gordon v. Steele
                                   a. No one shall be deemed to gain/lose residence at an institution of higher
                                   b. Fed District court of Penn
                                   c. Defendant move to dismiss b/c lack of subject matter diversity
                                   d. Gordon needed to have intent to remain in Idaho (where attended
                                        school) at time of filing claim and not to return to Michigan (residence
                                        of her parents)
                                   e. Just needed preponderance of evidence: more likely than not
                   ii. Personal Jurisdiction
                           1. state/federal court that has power to render judgment against defendant
                  iii. Venue
                           1. place of trial
                           2. suit lies open to defendants challenge unless they have
                                   a. subject matter jurisdiction
                                   b. personal jurisdiction
                                   c. AND venue
           c. Stating the case
                    i. The Lawyer’s Responsibility
                           1. Bridges v. Diesel Service, Inc
                                   a. Bridges files suit against Diesel without exhausting administrative
                                        remedies w/ Equal Opportunity Commission and the counsel for the ∏
                                        didn’t display a competent level of research
                                   b. Although the attorney’s “pre-filing research was below that required of
                                        competent counsel,” the ct exercised its discretion & declined to impose
                   ii. The complaint
                           1. Bell v. Novick Transfer Co.
                                   a. Infant ∏ was injured in a car accident w/ the Δ
                  iii. The response – Motions and answer
                           1. Motion: attack summons/complaint in some way
                                   a. No position on validity of allegations (pre-answer)
                                   b. Action should not proceed: where suit filed/personal JD summons
                                        improperly served
                                   c. Complaint is true but ∏ has no right to relief: demur- dismiss action
                                   d. Want more definite claim to clarify
                           2. Answer: responsive pleading
                                 a. position on validity of allegations
                                 b. denies the truth or allegation until he finds out
                                 c. affirmative defenses: assert additional matters that will defeat claim
                           3. counterclaim: against new party/∏/Δ

Constitutional Framework for U.S. Litigations

   A.       Approaching Civil procedure
   B.      Constitutional limits in litigation
           a. Idea of jurisdiction
           b. JD and the constitution
           c. The constitution and choice of law

   I.      Personal JD
           a. Origins
                   i. Pennoyer v. Neff
                         1. started w/ unpaid legal fees and constructive service w/ publication and ∏ won
                             by default judgment and gets money from land sale to Pennoyer
                         2. writ of execution: buyer of property received sheriff’s deed
                         3. service of process: way to notify ∏ to Δ for lawsuit
                                 a. personal: personally give service
                                           i. personal service can sometimes create personal JD
                                 b. constructive: by publication – if Δ isn’t found then some states allow
                                     service in the paper
                                 c. attachment (of property): seizure of property by ct
                         4. OR ct lacked personal JD to enter enforceable judgment against Neff b/c he was
                             neither personally served w/ process in the state (in personam) nor was his
                             property attached when the lawsuit was filed
                         5. Avenues for personal JD
                                 a. Personal service in state
                                 b. Attach property when suit filed
                                 c. Notify by mail and if person shows up and doesn’t contest JD then they
           b. The modern constitutional formulation of power
                   i. Redefining constitutional power
                         1. International Shoe Co. v. Washington
                                 a. Established that minimum contacts = consent by doing business in a
                                     forum (instead of just “presence” in Pennoyer)
                                           i. Ct recognizes a degree of presence in the state exercise of JD w/
                                              comply w/ traditional notions of fair play and substantial
                                          ii. Corp. can be sued where incorporated or where HQ
                                         iii. Domicile and consent, in and of themselves, constitute
                                              “minimum contacts” w/ the forum state
                                 b. Specific JD: JD exists for specific claims in question but no necessarily
                                     for other claims
                                 c. General JD: any lawsuit
                                 d. Relevant contacts = sale of goods in a forum
                 e. To decide JD, the Δ needs to purposely avail themselves to privileges of
                     conducting activities in the forum and at the reasonableness at permitting
                 f. Minimum contacts: look for voluntary action by Δ to establish a
                     beneficial relationship with the forum
                           i. Foreseeability: Δ must reasonably anticipate being haled into ct
                              there – mere foreseeability of contact with forum is insufficient
                          ii. Relation to claim: “specific JD” is proper with regard to the
                         iii. Commercial v. noncommercial: purposeful availment is easier
                              to find with Δs commercial activity
                         iv. Choice of law distinguished
                          v. Factors such as lack of inconvenience to Δ don’t outweigh the
                              requirement of personal availment
 ii. Absorbing In Rem JD
        1. lawsuit is about the property
        2. quasi in rem: property owned in the state not in the claim – can be attached
                 a. Neff v. Mitchell – can’t establish in rem b/c property was bought after the
        3. Shaffer v. Heitner
                 a. DE cts exercise of JD violated due process b/c Δs didn’t have minimum
                     contacts w/ state - all assertion of state ct JD must be evaluated
                     according to Int’l Shoe standard
                 b. Abolishes quasi in rem (to attach property just to get JD)
iii. Specific JD: state JD over a certain law suit –min contacts directly relative to claim
        1. McGee v. International Life Ins. Co.
                 a. The exercise of personal JD over TX insurance. Co. that sold a policy to
                     a customer in CA didn’t violate due process b/c:
                           i. Suit was based on a k that had substantial connections with the
                          ii. CA has a manifest interest in providing effective means of
                              redress for its residents when their insurers refuse to pay claims
                         iii. There was no contention that the Δ didn’t have adequate notice
                              of the suit or sufficient time to defend himself
                         iv. Did actively solicit business in CA and introduced long arm to
                              International shoe
        2. Hanson v. Denckla
                 a. FA cts couldn’t acquire personal JD over the DE trustee (and the trust
                     assets) b/c although Mrs. Donner received trust income and carried on
                     some trust administration in FA, the trust co. didn’t have min. contacts
                     with FA
                 b. It is essential in each case that there be some act by which the Δ
                     purposefully avails itself of the privilege of conducting activities w/in
                     the forum state, thus invoking the benefits and protection of its laws
                 c. Didn’t try to solicit business in Δs state
        3. World-Wide Volkswagon Corp v. Woodson
                 a. OK cts couldn’t exercise personal JD over the WW-Volks or Seaway in a
                     products liability action stemming from an accident in that state b/c the
                     Δs had no “contacts, ties, or relations” w/ state of OK
                 b. “Forseeability” alone has never been a sufficient benchmark for personal
                     JD under the Due Process Clause (not sufficient alone)
                c. concerns to see if it is minimum contacts
                           i. convenience to the Δ – fair forum
                          ii. federalism – don’t want states overreaching their bounds
                d. Rather, personal JD exists if Δ “purposely avails itself of the privilege of
                     conducting activities in the forum state” or “delivers its products into the
                     stream of commerce w/ the expectation that they will be purchased by
                     consumers in the forum state.”
        4. Asashi Metal Industry Co. v. Superior Ct.
                a. Accident with motorcycle and ∏ sues manufacturer/maker/etc even
                     though they were foreigners…suit was settled b/w the American contacts
                     so the two parties didn’t have JD in USA since business was Taiwan and
                b. Just awareness that components could be sold in a forum doesn’t
                     constitute min. contacts (only thing justices agreed on)
                c. Considerations for fair play and substantial justice
                           i. Inconvenience (burden on Δ)
                          ii. Federalism: shouldn’t haul foreign Δs into ct
                         iii. Interest of state in the matter
                         iv. Interest of ∏ in the matter
                d. There was a huge burden on the Δ to come to CA
                e. Scalia – dissent saying that there is a difference b/w min contact and fair
                     play and substantial justice
        5. Burger King Corp. v. Rudzewicz
                a. Minimum contacts: purpose of test is to provide individuals with fair
                     warning that their activities w/in a forum may subject them to suit there.
                     This “fair warning” requirement is satisfied if the Δ has “purposefully
                     directed” his activities at residents of the forum and the litigation results
                     from alleged injuries that “arise out of or relate to” those activities
                b. Fair play and substantial justice: once it has been decided that a Δ
                     purposefully established min. contacts w/ the forum state, those contacts
                     may be considered in light of other factors to determine whether personal
                     JD would comport w/ “fair play and substantial justice.” This inquiry
                     into the “reasonableness” of a state’s exercise of personal JD may
                     strengthen relatively weak contacts or eliminate JD despite the existence
                     of min. contacts
                c. FA’s exercise of personal JD didn’t violate due process b/c Δ
                     deliberately reached out beyond MI and negotiated with a FA corp. for
                     the acquisition of a long-term franchise (which anticipated continuous,
                     future dealings b/w the parties) and the franchise agreement contained a
                     choice of law clause, which provided that any disputes would be
                     governed by FA law. Finally, it was perfectly reasonable to require this
                     sophisticated businessperson to defend this lawsuit in FA
                d. Stevens dissenting: there is a significant element of unfairness in
                     requiring a franchisee to defend a case of this kind of forum chosen by
                     the franchiser
iv. General JD – doesn’t apply to corp. since they don’t have a physical presence – JD on Δ
    for any kind of suit – contacts so substantial
        1. Burnham v. Superior C
                a. Divorce b/w husband in MD and mom with kids in CA where dad
                     brought suit but didn’t serve wife so she filed suit in CA since he had
                     voluntary contacts with for business and the kids
                        b. Plurality: (4 Js) bright line rule: Mere physical presence = ability to be
                            served since principle of personal JD is that state has JD over non
                            residents who are physically and voluntarily present in the state
                                  i. Presence is unnecessary (under Int’l shoe) but it is sufficient
                                     under Pennoyer & traditional notions
                        c. Concurrence (4 Js): case by case inquiry
                                  i. Due process requires an independent inquiry rule the fairness of
                                     the prevailing in-state service rule
                                 ii. Here petitioner was knowingly and voluntarily present in the
                        d. Corporations don’t have a physical presence so can’t just serve in person
                            – must prove min contacts and substantial justice and fair play
                        e. Stevens: tradition & fairness + common sense = easy case
c. Consent as a substitute for power
        i. Carnival Cruise Lines, Inc. v. Shute
               1. Shute’s purchased tickets for a cruise, where Mrs. was injured on the boat in
                   international waters…this was for enforceability of a clause included in the
                   tickets that the passengers had to accept the terms in accepting the ticket
               2. forum selection clauses in k’s are subject to judicial scrutiny for “fundamental
                   fairness” – just b/c you have the clause doesn’t mean it isn’t subject to judicial
               3. the clause was enforceable b/c there was no bad faith, fraud or overreaching and
                   ∏s conceded that they had notice of the provision
               4. lack of bargaining power
                        a. wasn’t freely bargained for
                        b. denied 1 party remedies
                        c. created additional expenses (not worth the cost of litigation)
d. Constitutional Requirement of Notice
        i. Mullane v. Central Hanover Bank & Trust Co.
               1. trust was created under NY banking law to invest the funds of many small funds
               2. written notice by mail is adequate but constructively serving is impractical for
                   non-residents since there wasn’t reasonable notice
               3. Notice of suit
                        a. Personal service – always sufficient
                        b. Publication and attachment – caretaker (here caretaker has the conflict of
                            interest since it is in charge of the trust)
                        c. Unknown beneficiary – have no other way to know addresses so
                            publication is ok
                        d. Known beneficiary – notify by mail – not always sufficient since
                            personal service is better
               4. due process requires “notice reasonably calculated under the circumstances, to
                   appraise interested parties of the actions and provide them w/ an opportunity to
e. Self-imposed restraints on JD power: Long arm statutes, venue, and discretionary refusal of JD
        i. Long-arm statutes as a restraint to JD
               1. Gibbons v. Brown
                        a. ∏ didn’t allege sufficient JD facts to bring the Δ w/in the coverage of
                            the FA long-arm statute
                        b. even assuming arguendo that bringing an action in a FA ct can constitute
                            a “substantial and not isolated activity” in some instances, ∏ didn’t
                                   show that Δ “is engaged” in any activity in FA other than defending the
                                   present lawsuit
                               c. two prong test for PJ
                                         i. ∏ must allege sufficient JD facts to bring the Δ w/in the
                                            coverage of the state’s long arm statute
                                        ii. and then the second inquiry is whether the exercise of personal
                                            JD over the Δ would comport w/ the requirements of due process
             ii. Venue as a Further localizing principle
                     1. Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd.
                               a. Personal JD over Indonesian Manufacturer:
                                         i. Long-arm statutory authority was established by the Clayton
                                            Act, which provides for world-wide service of process to corps.,
                                            and service of process was properly carried out pursuant to Rule
                                            4(f)(2(C)(ii). Statutory authority was also provide by Rule
                                        ii. Personal JD was constitutionally permissible under Intern. Shoe
                                            based on Δs appointment of exclusive U.S. sales agents and its
                                            customizing of products for the U.S. market
                               b. Venue over foreign Δs: was proper under 28 U.S.C. s 1391(d), which
                                   provides that aliens may be sued in any federal judicial district
                               c. Venue over domestic Δs: it was unclear whether venue was proper for
                                   the American Δs; 28 U.S.C. ss1391(b)(1) and (2) were inapplicable and
                                   there was insufficient evidence to establish that “any Δ” engaged in
                                   sufficient activities to be “found” in the district under x1391(b)(3)
            iii. Declining JD: Transfer and Forum Non Conveniens
                     1. Forum Non Conveniens
                               a. Piper Aircraft v. Reyno
                                         i. District ct didn’t abuse its discretion in dismissing the case on
                                            the grounds of forum non conveniens
                                        ii. Possibility of a change in substantive law should not be given
                                            substantial weight unless the remedy provided by the alternative
                                            forum is so clearly inadequate or unsatisfactory that it is no
                                            remedy at all
                                       iii. District ct properly decided that the presumption in favor of the
                                            respondent’s forum choice applied w/ less than maximum force
                                            because the real parties in interest were foreign (and the chosen
                                            forum was therefore not convenient). Moreover, it didn’t act
                                            unreasonably in deciding that the private interests (primarily
                                            access to proof and ability to implead potential 3rd party Δs) and
                                            the public interests (essentially federalism and conflict of law
                                            considerations) favored trial in Scotland
                     2. Transfer under 28 U.S.C. ss1404 (move from federal to different district court),
                          1406, 1631
      a. The idea and the structure of subject matter JD
              i. Art III sec 2 – limits fed ct to types of cases “arising under federal law”
             ii. 28 USC 1331 – gives dis cts JD over cases “arising under the constitution, statutes, or
                 treaties of fed govt
            iii. fed ct are limited JD that are concurrent
      b. Federal Question JD
              i. Louisville & Nashville RR v. Mottley
                      1. ∏ was given lifetime passes to make up for injury in railway accident but tickets
                           became unacceptable when avoiding bribing public officials
                      2. a suit arises under the Constitution and laws of the U.S. for purposes of 28 U.S.C.
                           s 1331 (district cts) only when the ∏s statement of her own cause of action
                           shows that it is based upon federal law
                      3. here, there was no federal subject matter JD b/c issues of federal law would
                           likely arise only as an affirmative defense and in addressing ∏s reply to that
                           defense, not in ∏s original claim (which was for breach of k under state law)
                      4. Rule 12(b)(3) – improper venue
                      5. sua sponte – on cts own motion
                      6. subject matter must be challenged by the ct in each case but PJ must be brought
                           by Δ
               ii. Mas v. Perry
                      1. mirrors in the bathroom
                      2. complete diversity (when lawsuit is filed) of parties is required for diversity JD
                           and no party on one side may be a citizen of the same state as any party on the
                           other side
                                a. domicile – permanent home which he has the intention of returning when
                                    he is absent from w/ intent to remain there
              iii. Saadeh v. Farouki
                      1. Jordanian resident living in MD when he borrowed funds from Greek and then
                           defaulted on the loan
                      2. amended 1332 (a) – alien in the US for permanent residence shall be deemed a
                           citizen of the state of domicile
                      3. there was diversity JD over a dispute b/w a foreign citizen and an alien who was
                           residing permanently in MD. Ct rejected plain meaning of 1332 b/c it would be
                           contrary to Congress’s intent to narrow diversity JD and would raise constant
       c. Supplemental JD
                i. United Mind Workers v. Gibbs
                      1. Gibbs was hired to run a mine and haul coal and was threatened by miners on
                           strike which started a state and federal claim
                      2. pendent JD/supplemental – when claim arises under Const., other state claims
                           allow the entire action to have one constitutional case
                      3. supplemental JD can be exercised over a state law claim when the fed and state
                           claim derive from a common nucleus of operative fact (Art III sec 2) 1367 –
                           supplemental JD
                      4. dis cts should exercise their discretion in assessing whether to allow
                           supplemental claims based on economy, fairness, & federalism considerations,
                           increasing efficiency and evidentiary overlap
       d. Removal
                i. Caterpillar, Inc. v. Lewis
                      1. ∏ was injured while operating a bulldozer and brought product liability claims
                           against the manufacturer
                      2. jurisdictional defect cured before final judgment entered – denial of the motion to
                           remand will not justify reversal if the JD defect is cured b/f entry of final
                      3. 1441 motion for dismissal
III.   The Erie Problem
       a. State Courts as Lawmakers in a Federal System
        i. The Issue in Historical Context
       ii. Constitutionalizing the Issue
               1. Erie Railroad v. Tompkins
                                  i. ∏ was walking down the RR and an open refrigerator took off
                                     his arm
                                 ii. held that fed cts are required to apply state common law (as well
                                     as substantive positive law) in diversity cases
                                iii. discourages forum shopping and doesn’t give fed cts
                                     unauthorized lawmaking power
                                iv. if there is flexibility, the fed ct would pick what decision the
                                     state ct would make
b. The limits of State Power in Federal Courts
        i. Interpreting the Constitutional Command of Erie
               1. Guaranty Trust Co. v. York
                        a. Outcome determinative test – federal cts sitting in diversity should apply
                            a state law that conflicts w/ federal practice when disregarding the state
                            law would significantly affect the outcome of litigation
                        b. Under Erie law, federal cts must apply state substantive law in diversity
                        c. Federal procedural law applies in fed cts (however, some are substantive
                            and procedural like SOL outcome determinative test tried to draw the
               2. Byrd v. Blue Ridge Rural Electric Cooperative
                        a. Fed cts shouldn’t conform to state decisions if it disrupts the judge-jury
                            relationship in ct provided by the 7th amend of the constitution
                        b. Hypo: jury selection
                                  i. For fed – judge decides & for state – jury decides
       ii. De-Constitutionalizing Erie
               1. Hanna v. Plumer
                        a. Substantive rules of state law apply under Erie. If, however, state-
                            law rule or practice is “rationally capable of classification as either”
                            substantive or procedural, then:
                        b. Does FRCP or federal statute govern the situation and conflict w/ the
                            state law?
                                  i. If so, is FRCP permissible under the Rules Enabling Act (ie –
                                     “rules of practice and procedure”)?
                                 ii. If so, is FRCP or statute constitutional?
                                iii. If so, federal rule or statute applies under Hanna
                        c. If answer to (b) is no, court should:
                                  i. Balance the importance of a conflicting federal practice
                                     against the likelihood of a different outcome in state court
                                     under Byrd; and/or:
                                 ii. Examine, under Hanna, whether disregarding the state
                                     practice would:
                                          1. encourage unseemly forum-shopping, or
                                          2. lead to inequitable administration of the laws
                                                   a. if so, court should apply state-law rule
                                                   b. if not, court should apply federal practice
      iii. Determining the Scope of Federal Law: Avoiding and Accommodating Erie
               1. Burlington Northern Railroad v. Woods
                                   a. An Alabama statute, which required a Δ who lost an appeal of a
                                       monetary judgment to pay an additional 10% damages, was inapplicable
                                       in federal court because the state law conflicted w/ Rule 38 of the
                                       Federal Rules of Appellate Procedure. Rule 38 provided that the federal
                                       court may only “award just damages and single and double costs to the
                                       appellee” if the appeal was deemed “frivolous”
                            2. Stewart Organization, Inc. v. Ricoh
                                   a. Alabama state court decisions holding forum-selection clauses
                                       unenforceable were not controlling in a federal diversity case b/c they
                                       conflicted w/ the federal transfer statute, which provides that a federal
                                       court may exercise its discretion to transfer a case “for the convenience
                                       of the parties, in the interests of justice.” In applying the federal transfer
                                       statute, the district court could consider, but wasn’t bound, by the state
                                       court decisions
                            3. Gasperini v. Center for Humanities, Inc.
                                   a. (3)(c) Alternatively, the federal court could adopt a compromise b/w the
                                       application of state and federal law under Gasperini, in which the state’s
                                       dominant interest is respected w/out disrupting the federal system
                                   b. Byrd, Hanna, and Gasperini are all good law
                            4. Determining the Scope of State Law
                                   a. if a federal judge is sitting on a state issue that has no precedence or old
                                       precedence, then the district court judge must use best judgment to
                                       decide how a state ct would resolve the issue
                                   b. fed cts can adopt a certification – fed cts ask state cts for an answer to a
                                       question about state law
                                   c. but state must have a certification procedure
                                   d. fed cts can only abstain in special circumstances – if an important state
                                       law in question

  A. Approaching Civil Procedure
  B. Choosing Procedure
  C. A roadmap for Exploring Choices
         a. Litigation in the U.S. at the end of the 20th century
                 i. How much litigation?
                ii. Why litigate?
         b. Substitutionary Remedies
                 i. Compensatory Damages
                         1. United States v. Hatahley
                                 a. the fundamental principle of damages is to restore the injured party, as
                                      nearly as possible, to the position she would have been in had it not been
                                      for the wrong of the other party
                ii. Liquidated, Statutory, and Punitive Damages
                         1. Honda Motor Co. v. Oberg
                                 a. The OR Constitution’s prohibition of judicial review of the amount of
                                      punitive damages violated the Due Process Clause of the 14th amendment
                                 b. PUNITIVE: private ∏s, preponderance of evidence, jury trial
                                 c. CRIMINAL: state, beyond a reasonable doubt, judge trial,
                                           i. Δ have some safeguards of a higher degree than punitive
                2. BMW of North America v. Gore
                        a. An award of $2 million in punitive damages for failing to disclose minor
                           damage to a new car was “grossly excessive” punishment in violation of
                           the Due Process Clause of the 14th amend.
                        b. Federalism concerns: the award, insofar as it sought to impose punitive
                           damages on BMW for cars sold outside that state, was unconstitutional
                        c. Notions of fundamental fairness: elementary notions of fairness
                           enshrined in our constitutional jurisprudence dictate that a person receive
                           fair notice not only of the conduct that will subject her to punishment,
                           but also of the severity of the penalty that a state may impose
                                 i. 3 Guideposts to see if punitive damages are excessive
                                        1. degree of reprehensibility of Δs conduct (economic
                                             harm v. safety)
                                        2. disparity b/w the compensatory damages suffered by
                                             ∏ and his punitive damage award (the latter was
                                             500X greater than the former)
                                        3. difference b/w amount of punitive damages and civil
                                             penalties authorized and imposed by the govt in
                                             comparable cases
                3. HYPOS IN CLASS
                        a. Rio Blanco
                           (1) trying to avoid irreparable harm of having their water shut off – not
                                having water to drink, etc.
                           (2) none
                           (3) balance of hardships – local govt. hardships in need water b/c severe
                           (4) public interest – airplanes can’t get off the ground to defend the
                                country v. water for survival
                        b. OPO Case
                           (1) irreparable harm – out of business (financial harm is not irreparable)
                                and reputation harm
                           (2) balance of hardships – disrupt organ donor process b/c it would take
                                time to put in someone else/disorganization in the business cause
c. Specific Remedies
        i. The Idea of Specific relief
       ii. An excursus on equity and specific relief
      iii. Is there a remedial hierarchy?
                1. Sigma Chemical Co. v. Harris
                        a. ∏ was entitled to permanent injunctive relief to enforce a non-
                           competition agreement in an employment k. the agreement itself was
                           reasonable, the balance of hardships weighed in favor of the ∏, and ∏
                           was facing an injury for which it had no adequate legal remedy
d. Declaratory Relief
e. Financing Litigation
        i. The “American” Rule
       ii. Insurance and Contingent Fee
      iii. Public Subsidies and Professional Charity
      iv. From Fee Spreading to Fee Shifting
                1. The Common Fund
                 2. By Contract
                 3. By Common Law
                 4. By Statute
         v. Fee Shifting and Settlement
                 1. Rule 68
                 2. Separating Lawyer and Client
                         a. Evans v. Jeff D.
f.   Provisional Remedies
          i. Preliminary Injunctions and Temporary Restraining Orders: The Basic Problem
                 1. William Inglis & Sons Baking Co. v. ITT
                         a. Alternative standards for preliminary injunction (PI)
                                  i. ∏ is only entitled to a PI if the courts finds that
                                          1. ∏ will suffer irreparable harm if PI isn’t granted
                                          2. ∏ will probably prevail on the merits
                                          3. balancing the equities, Δs won’t be harmed more than
                                               the ∏ is helped by the injunction, and
                                          4. granting the injunction is in the public interest
                                 ii. ∏ must demonstrate either a combination of probable success
                                     and the possibility of irreparable injury or that “serious questions
                                     are raised” and the balance of hardships tips sharply in his favor.
                                     It is not necessary that the moving party be reasonably certain to
                                     succeed on the merits. If the harm that may occur to the ∏is
                                     sufficiently serious, it is only necessary that there be a “fair
                                     chance” of success on the merits
                 2. rule 65 – Emergency Relief (read it)
                         a. deals w/ preliminary injunction
                                  i. can’t be issued w/o prior notice of the Δ
                         b. can be merged w/ case on the merits
                         c. modification of a request for PI can be immediately up for appeal
                                  i. for extreme hardship of the Δ or the necessity of ∏
                         d. temporary restraining order (TRO)
                                  i. can be done for 10 days – can be extended w/ compliance of Δ
                                 ii. can be done w/o trial and must have special permission to do w/o
                         e. security
                                  i. if a party is wrongfully given a hardship, the ∏ must provide
                                     security to compensate the Δ for the inconvenience they dealt
                                     w/ for the wrongful injunction
                                 ii. done by posting a bond when ∏ makes the motion for
         ii. Provisional Remedies and due process
                 1. Fuentes v. Shevin
                         a. Cts must use a reasonable test to avoid unfair and mistaken deprivations
                             of property – must establish the validity or a probable validity of
                             underlying claim against the alleged debtor b/f he can deprived of his
                         b. only “extraordinary situation” can justify postponing notice and
                             opportunity for hearing
                         c. Rule 65 (TRO)
                                        i. Only be granted w/o written or verbal notice if:
                                               1. facts from affidavit-immediate/irreparable damage
                                       ii. higher burden on ∏
                                      iii. effect to provide notice
                                      iv. informed evaluation by important adjudication
     a. pleading in a modern regime
             i. why pleading matters
                     1. complaint that starts the law – responsive pleading – answer or motion to dismiss
                         or reply to answer
            ii. stating a claim: general principles
                     1. People ex rel. DOT v. Superior Court
                             a. Example of factually insufficient claim (writ of mandamus – claim
                                  against govt official)
                             b. In order to be demurrer proof under CA law, a complaint (including
                                  “form” (complaints) must contain ultimate facts essential to state a cause
                                  of action. Although allegations must be liberally construed, they should
                                  provide Δ adequate notice to defend the case
                     2. Haddle v. Garrison (legally insufficient claim)
                             a. CRA – conspiracy to deter testimony causing injury to W’s “person or
                             b. Consistency in pleading (p422)
                                        i. Parties don’t have all of the fats at this stage in the proceedings
                                           and they need to develop alternative theories during discovery
                                       ii. Complaint alleges that Δ borrowed a kettle and then returned it
                                                1. defenses – it was already broken, never borrowed, etc
                                                2. was acceptable as a response even though it was
                                                     apparently inconsistent
                             c. Rule 8 - a short and plain statement of the claim showing that pleader is
                                  entitled to relief
           iii. Ethical limitations and disfavored claims
                     1. ethical principles as a limitation
                             a. Business Guides v. Chromatic Communications Enterprises
                                        i. the law firm and client violated Rule 11(b)(3) by failing to
                                           conduct a reasonable inquiry to ensure that their “allegations and
                                           other factual contentions had evidentiary support
                                                1. it was dismissed w/ prejudice and sanctioned (usually
                                                     non-monetary – monetary are disfavored under the rule)
                                                     to the magistrate
                             b. Religious Technology Center v. Gerbode
                                        i. the law firm violated Rule 11(b)(2) by filing a complaint w/o
                                           conducting reasonable legal research, which would have
                                           disclosed that the party’s claim was foreclosed by binding
                             c. Highlights of Rule 11
                                        i. (a) – there is a signature requirement – each document must be
                                           signed by one attorney of record or an unrepresented party to
                                           make a representation w/ the court saying that the document
                                           complies w/ rule 11
                       1. best of the knowledge formed after an inquiry reasonable
                            under the circumstances
                       2. attny has affirmative obligation to investigate b/f filing a
                            pleading – factual and legal research
                       3. B1 – not made for improper purposes (delaying,
                       4. Allowed to have a claim that has binding precedent
                            against them if they state that their goal is to take it to
                            the supreme court to change the law – must tell them the
                            existing law
                       5. B3 – certifying that the allegations have evidentiary
                            support or likely to have it after a reasonable opportunity
                            to discovery
               ii. Sanctions can be initiated by opposing parties – but there are
                       1. Sufferent motion requirement – if the party makes a
                            good faith mistake, they can have 21 day safe harbor
                            period to correct their mistake and either dismiss or
                            amend the complaint b/f imposing sanctions
              iii. C2 – limit to what is necessary to serve the deterring purpose
                   (non monetary first then maybe pay opposing party’s attny fees
                       1. Monetary damages can’t be given to the client since it is
                            the attny’s job to do the research
              iv. Rule 8 – short and plain statement of the claim showing that
                   pleader is entitled to relief
2. Disfavored claims
       a. Fraud – Olsen v. Pratt & Whitney
                i. ∏ was a fire lieutenant assured his job was secure and then
                   waived rights relying on false representations that he wasn’t
                   going to get fired
       b. heightened pleading requirement - must identify the parties that
          defrauded, state when and where the statements were made, why
          fraudulent, what was said
                i. you can plead the intent generally – “upon information and belief
                   Δs knew that the statements were false” (heightened pleading
                   requirement doesn’t apply to the intent part) – rule 9(b)
               ii. Because ∏s fraud claim failed to satisfy the heightened pleading
                   requirement of Rule 9(b), the ct of appeals remanded the case to
                   permit ∏ an opportunity to file a well-pleaded complaint
       c. Civil Rights – Leatherman v. Tarrant County Narcotics Intelligence
                i. Forcible entry into the home and dogs were shot in the absence
                   of ∏s presence
               ii. a fed ct may not apply a heightened pleading standard in civil
                   rights seeking to impose damages in cases alleging municipal
                   (∏ must allege that the municipality had a policy or custom
                   that violated their constitutional rights – to establish liability
                   – prove by getting the regulations) liability under 42 USC
       d. Allocating the elements – Gomez v. Toledo
               i. ∏ was agent w/ Puerto Rico police and had evidence against
                  two other agents
              ii. Qualified immunity – shields Δ from defending a lawsuit at all
                      1. Now supreme court allows qualified immunity if the Δs
                           conduct was objectively reasonable – ct looks at alleged
                           conduct to see if conduct is sufficiently egregious, then
                           immunity would be denied
             iii. Some JDs allow heightened pleading requirement for individual
                  govt officials since they case is decided in the pleading and they
                  need more info then
                      1. Some ct could require a reply to the answer (rule 7a)
                      2. **Rule 12e – Δ can request that the ∏ have a more
                           definite statement instead of an answer – usually used
             iv. ∏ must allege two things in a complaint violating 1983
                      1. some person has deprived him of a federal right
                      2. person who has deprived him of that right acted under
                           color of state or territorial law
              v. since qualified immunity is an affirmative defense to an action
                  against an individual govt. official under section 1983, the
                  burden of the pleading it rests w/ the Δ
3. Responding to the Complaint
      a. Pre-Answer (Δ can raise objection at very early state under Rule 12 (B)
               i. Reasons why ct shouldn’t proceed w/ the action
              ii. Question as to whether the complaint, even if true, provide a
                  basis for legal relief or whether ∏ has joined an essential party
             iii. Denial
             iv. Affirmative defense
              v. Request for clarification and more info (may not be included in
                  Δs answer)
      b. Answer
               i. Denials
                      1. Zielinski v. Philadelphia Piers, Inc
                               a. Negligently operated forklift that ran into
                                    another fork lift w/ initials PPI
                               b. General v. specific denial rule 8 B
                                          i. when a Δ answers a complaint to deny
                                              partially – Δ must make it clear just
                                              what he is denying and what he is
              ii. Affirmative Defenses
                      1. Layman v. Southwestern Bell Telephone Co.
                               a. Δ used easement to have access to ∏s land to
                                    install telephone wire and dig a trench
                               b. If affirmative defense relies on info that isn’t in
                                    the complaint, the Δ must include that in the
                                          i. Like saying they had an easement which
                                              would allow Δs to do it

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