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									                       CIVIL PROCEDURE II
                       SECTION 1, WINTER 2008
                     PROFESSOR JAMES R. DEVINE
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Materials:   Yeazell, Civil Procedure (6th Ed., Little Brown, 2008)
             Federal Rules of Civil Procedure (Foundation Press, Current Ed.)
             Devine, Problems in Civil Procedure (West, 2007)

        1. Read the materials in the order presented. When a specific note is
mentioned before earlier notes, it means the notes will be discussed in the order
listed. Where reference is made to "hand-out" material, that material will be
handed out in the class prior to its discussion;
        2. This syllabus contains about 300 +/- pages of scheduled reading. To keep
ahead, you should always be at least 11 pages ahead of where each class ends.
        3. Be sure your name is on the seating chart and then always sit in the seat
you chose. Please avoid arriving late to class. If you must arrive late, please sit in
your regular seat.
        4. American Bar Association Accreditation Standard 305(c) requires your
regular class attendance. Given the number of classes in a 2 credit hour class, if
you miss more than 8 classes, you cannot be considered a regular attender.
"Attendance" requires not only that you be physically present in the room, but also
that you be prepared for the day's assignment.
              A. I will pass around a copy of the class list each class. You should
initial next to your name to indicate your are present. If you do not initial, you are
considered ABSENT;
              B. If I call on you and you are unprepared, you are also considered
        5. The best time for me to answer questions is directly after class. I will stay
around as long as necessary to answer questions. I am in the building most every
morning around 7:15 and leave around 6:30. Please stop by my office, room 232, if
you want to talk. If I am not there, ask Robin to set up an appointment for you.

                   Note for Students with Disabilities
      6. If you need accommodations because of a disability, if you have
emergency medical information to share with me, or if you need special
arrangements in case the building must be evacuated, please inform me either
privately after class, or in my office. To request academic accommodations (for

example, a note taker), students must also register with Disability Services, AO38
Brady Commons, 882-4696. It is the campus office responsible for reviewing
documentation provided by students requesting academic accommodations, and for
accommodations planning in cooperation with students and instructors, as needed
and consistent with course requirements. For other MU resources for students with
disabilities, click on “Disability Resources” on the MU homepage.

                       Discovery Game Assignment
       7. The CALI exercises in the Computer Lab offer the Discovery Game
involving Buffalo Creek (Initial Disclosure Version). Do Not Do ANY OTHER
Discovery Game. If you do not have the Green, CALI book, that is o.k., because
you can print out the facts for each of the Discovery Game exercises directly from
the exercise on the computer. Each student MUST choose an Adversary from the
class and each pair must complete the Buffalo Creek assignment. When you sign
onto the game, you will be asked to choose sides, and you must do so. I will have a
sign-in list in the Computer Lab so you can let me know when you use the Lab. In
addition, when you complete the exercise, YOU MUST PRINT OUT THE FINAL
SCORE AND TURN IT IN TO ME. To do these exercises effectively, you will
need your rule book with you. Do NOT do this exercise until we have
completed Discovery in the Syllabus.

                                 Special Lectures
        8. There will be several Special Lectures that will be scheduled by your
Legal Research and Writing Instructors but that will cover Civil Procedure topics.
These lectures will assist you in preparing your appeal for presentation in that
course. These lectures review Pleadings and Summary Judgment, and Appeals.
All of the material covered in ALL of these lectures is subject to testing on the Final

                             Examination Materials

       9.      Each student will be expected to contribute to the possible
examination in this course. By the end of Thursday's class following completion of
the material for which you are responsible, each student in the class shall turn in
the following:
           a. 4 Multiple Choice Questions based on readings from the Main
Syllabus. Your assignment will appear in the syllabus. If your last name begins
with the letters A-G, your questions will be due first, followed by students whosw
last name begins with H-O, followed by students whose last name begins with P-Z.
           b. Multiple Choice Questions shall be typed, submitted electronically to
Prof. Devine, shall contain at least 4 distracting answers and 1 correct answer. On
a separate sheet of paper, you MUST indicate why the distractors are wrong and

why the correct answer is correct;
           c. Your Multiple Choice Questions shall have your name affixed to them;
           d. I will not guarantee that I will use any of the questions submitted.
           e. If you do not turn in multiple choice questions at the assigned time,
you will have 5 points deducted from your final grade in the course. In addition,
you cannot receive a grade in the course until you turn in multiple choice questions.


              10. There will be a discussions of the number of examinations in this
course on Wednesday, January 23, 2008. Please attend class that day to participate
in this discussion.

              11. The actual Syllabus for the Course begins below:


      VIII.    Chapter VII–Discovery
              A.    Introduction, p 407
              B.     Fed R. Civ. P 30-36, 26
              C.     Mandatory Disclosures;
                    1.    Devine Problem, p 93 (Kendall v. Brown)
              D.     Relevance, p 487
                    1.      Davis v. Precoat Metals, p 407
                    2.      Steffan v. Cheney, p 411
                    3.      Devine Problem, p 95 (Condit v. Dunne)
              E.     Privilege, p 414
                    1.    R.S. Mo. 491.060
                    2.      Problems, p 494
                    3.    Devine Problem p. 97 (Horton v. Prescott)
              F.     Surveying Discovery Methods, pp 416-426
                    1.      Do all problems on these pages;
                    2.      Answers will be discussed in class, but we will not spend
                          much time on this material;
              G.     Privacy
                    1.     Stalnaker v. Kmart Corp, p 427
                    2.     Fed R. Civ. P 26(c)
                    3.     Notes p 429
                    4.     Devine Problem, p 94 (Smithton v. Buchner)
              H.     Physical and Mental Examinations
                    1.     Schlagenhauf v. Holder, p 433

           2.      Fed R. Civ. P 35
           3.      Notes 3-4, p 524-25
      I.     Privilege and Trial Preparation Material
           1.       Hickman v. Taylor, p 438
           2.      Fed R. Civ. P 26, 33, 34
           3.      Note 2, 3, 4, 5, 6 p 443
           4.      Devine Problem, p 99 (Lockwood v. Lawrence)
      J.     Expert Information
           1.      Notes, p 446
           2.      Fed R. Civ. P 26
           3.      Thompson v. The Haskell Co., p 447
           4.      Chiquita International v. M/V Bolero Reefer, p 448
           5.      Note 2(c), p 450
           6.      Devine Problem, p 101 (Herr v. Blackwell)
           7.      Devine Problem, p 102 (Burrows v. Tar Creek)
      K.     Discovery Abuse
           1.      Fed R. Civ. P 26, 30
           2.      Read p 451
           3.      Notes and Problems, pp 453-454
           4.      Thompson v. Department of Housing, p 451
           5.      Poole v. Textron, p 457
           6.      Devine Problem, p 103 (Schecter v. FoodFresh)
      L.   E-Discovery
           1.     Read again those portions of Rule 26 that specifically
                  relate to “electronically stored” information
           2.     Supplement, pp 551-553
           3.     Problems, Supplement, pp 553-554;
      M.    All Students should now do the Buffalo Creek assignment
           detailed earlier in the Syllabus; REMEMBER–You are
           required to turn in your NAMES and SCORES to Professor
           Devine as Proof of Completion;

IX.    Chapter VIII--Resolution Without Trial
      A.     Introduction, p 465
      B.     Default Judgments
           1.      Problems, p 466
           2.      Fed R. Civ. P 55
           3.      Peralta v. Heights Med. Center, p 467
           4.      Fed R. Civ. P 60
           5.      Notes 1, 2, p 469
           6.      Devine Problem, p 113 (Heritage Bank v. LaRoush)
      C.     Involuntary Dismissals
           1.      Introduction, p 471

         2.     Fed R. Civ. P. 41(b)
         3.     Notes and Problems, pp 471-72
         4.     Devine Problem, p 111 (Landon v. Northwestern State)
    D.    Voluntary Dismissals
         1.     Introduction, p 473
         2.     Fed R. Civ. P. 41(a), (c)
         3.     Notes and Problems, pp 473-475
         4.     Devine Problem, p 109 (Universal Soccer v. Kingston)
         5.     Devine Problem, p 110 (Howard v. Intercontinental)
    E.    Avoiding Adjudication
         1.      Negotiation Notes, p 475
               a.      Contracting to Dismiss, p 477
               b.      Contracting for Confidentiality, p 490
                      (1)    Notes and Problems, p 490
                      (2)     Kalinauskas v. Wong, p 492
                      (3)     Note 1, p 593
    F.   Private Adjudication
         1.    Notes, p 496
         2.    Notes and Problems, p 498 (we will not spend much time
         3.    Floss v. Ryan’s Family Steak House, p 501;
         4.    Lyster v. Ryan’s Family Steak House, p 504
         5.    Question 1, p 505–“Same agreement, similar claims,
               different outcomes. Why?”
    G.    Summary Judgment–NOTE-This material will be covered in
         your Research and Writing Class and will not be covered in
         Civil Procedure Class. This Material is, however, subject to
         testing on the final examination in Civil Procedure;
         1.     Fed R. Civ. P 56
         2.     Notes, p 513-516
         3.     Celotex Corp. v. Catrett, p 516
         4.     Note 2-3, p 519
         5.     Bias v. Advantage Int., Inc., p 521
         6.     Notes, pp 524-526
         7.     Devine Problem, p 114 (Waddle v. Central RR)
         8.     Devine Problem, p 116 (Clarett v. Reliable)
               a.   We will do BOTH of these problems in class;
    H.    Judicial Management of Litigation
         1.    Introduction, p 526
         2.     Sanders v. Union Pacific RR Co., p 528
         3.     Pretrial Order, p 531
               a.     McKey v. Fairbairn, p 532
Those Students whose last names begin with A-G--Turn in Your
Multiple Choice Questions and Answers on the Wednesday following
        completion of the material in Chapters VI and VIII)
    X.    Chapter IX--Identifying the Trier of Fact
         A.     Judging Judges: Bias and Recusal, p 537-539
               1.     In re Boston’s Children First, p 539
               2.      Notes, pp 542-546
               3.     Read all of the above material as background to solving
                      the following problems, which is wheat we will do in class;
               4.     Devine Problem, p 122 (Stansfield v. Stansfield)
               5.     Devine Problem, p 125 (In re Federal Judge’s Legislation)
         B.     The Right to a Civil Jury Trial, p 546-550
         C.     Applying the Historical Test to New Claims, p 550
               1.      Chauffeurs, Teamsters & Helpers v. Terry, p 550
               2.      Notes, pp 556-561–Read these notes Generally, as an aid
                      in solving Devine Problems, below
         D.       Applying the Historical Test to New Procedures, p 561
               1.      The Seventh Amend. & Changes in Judicial Procedure, p
                      a.       Amoco Oil Co. v. Torcomian, p 562
                      b.      Notes, pp 565-569–Read these notes Generally, as
                             an aid in solving Devine Problems, below
               2.      The Seventh Amendment and the Structure of Gov't., pp
         E.    The Right to Jury Trial in Context
               1.     Devine Problem, p 120 (U.S. v. AVX)
               2.     Devine Problem, p 120 (Johnson v. Georgia Highway)
               3.     Devine Problem, p 121 (Earl v. Valley Contractors)
               4.     Devine Problem, p 121 (Clinical Research, Inc. v.
         F.     The Jury’s Integrity
               1.    Introduction, pp 571-572
               2.     Summoning a Jury Pool, pp 572-573
               3.    Read the Additional Juror Statutes on the Website;
               4.     Challenges;
                     a.    For cause;
                     b.    Preemptory Challenges
                     c.    Batson Challenges;
                     d.    Read Notes p 573-575, p 578-582 Generally to help
                     e.    Devine Problem, p 125 (Westvan v. Vail)

    XI.     Chapter X--Trial
           A.    Limits of Rational Inference, p 583
                1.      Reid v. Sand Pedro, L.A. & Salt Lake RR, p 584
                 2.      Note 4, p 586
                 3.      Note 5, p 586
           B.      Judgment as a Matter of Law (Directed Verdict), p 593
                 1.      Fed R. Civ. P 50
                 2.      Pennsylvania RR v. Chamberlain, p 594
                 3.      Note 2(a), 1(a)-(b), 5(a), p 728-731
                 4.      Devine Problem, p 130 (Caron v. AirFoods)
           C.     Judgment as a Matter of Law ( JNOV), p 601–603
                 1.      Devine Problem, p 131 (Zink v. Home Rite Co.)
           D.     New Trial, p 603
                 1.      Fed R. Civ. P 59
                 2.      Notes, pp 603-604
                 3.      Lind v. Schenley Ind., p 604
                 4.      Note 4, 5, pp 608-09
                 5.      Devine Problems,
                        a.    P 133, New Evidence (Defenders v. Central)
                        b.    P 133, Conduct of Court (Hawk v. Wagner)
           E.     Conditional New Trial, pp 609-611
                 1.     Devine Problem, p 137 (Restin v. Health First)
           F.      Jury Integrity
                 1.      Peterson v. Wilson, p 611
                 2.      Notes, pp 615-617

    Those Students whose last names begin with H-O--Turn in Your
Multiple Choice Questions and Answers on the Wednesday following
         completion of the material in Chapters IX and X)
    XII.   Appeals–Chapter XI--NOTE- WITH THE EXCEPTION of E
           BELOW, this material will be covered in your Research and Writing
           Class and will not be covered in Civil Procedure Class. This Material
           is, however, subject to testing on the final examination in Civil
           A.      Introduction, p 619
           B.      Who May Seek Review, p 620
                 1.     A losing party: Adversity, p 620
                       a.      Notes, pp 620-623
                 2.     Who Raised the Issue Below: Waiver, p 623
                       a.      Notes, pp 623-626
                 3.     Who Was Not Deterred, p 626-27

C.    When a Decision May be Reviewed: Finality, p 627
     1.     The Final Judgment Rule, p 764
           a.      Appellate Jurisdiction;
                 (1)      Liberty Mutual Ins. Co. v. Wetzel, p 628
                 (2)      Notes, pp 632-634
           b.    Defining the Moment of Judgment, p 634
                 (1)     Notes pp 634-636
     2.     Exceptions to the Final Judgment Rule, p 773
           a.      Practical Finality
                 (1)     Lauro Lines, s.r.l. v. Chasser, p 636
                 (2)     Notes, pp 640
           b.      Injunctions, p 642-643
           c.      Interlocutory Appeals–28 U.S.C. §1292(b), pp 643-
           d.      Mandamus, pp 644-647
D.    Scope of Review, p 647
     1.     Law and Fact, p 786
           a.      Anderson v. Bessemer City, p 647
           b.      Notes, pp 651-653
     2.     Harmless Error, p 653-655
E.   Review Problems we will do in Class
     1.    Who may appeal,
           a.     Devine Problem, p 153 (Evans v. Alpha Sigma Nu)
           b.     Devine Problem, p 153 (McWilliams v. DelMonte)
           c.     Mootness, Devine Problem, p 155 (Braverwood v.
     2.    Final Orders
           a.     Devine Problem, p 156 (Farr v. Martin)
           b.     Devine Problem, p 156 (Haas v. Metro Transit)
           c.     Devine Problem, p 157 (Sulky Trucks v. Hanson)
     3.    Interlocutory Appeals
           a.     Controlling Questions of Law
                  (1)   Devine Problem, p 160 (Cruz v. Community)
           b.     Collateral Orders
                  (1)   Devine Problem, p 161 (Gehlhorn v.
     4.    Standard of Review
           a.     Review of Facts
                  (1)   Devine Problem, p 164 (Estate of
                        O’Shaunnessey v. Cascade State)
           b.     Plain Error
                  (1)   Devine Problem, p 165 (Capeon v. New Age)

  XIII.    Chapter XII--Respect for Judgments–In connection with this
          Chapter, there will be a series of Problems that will be available on the
          website in .pdf format;
          A.     Introduction, p 657
          B.     Claim Preclusion
                1.      Introduction, p 658
                2.      Frier v. City of Vandalia, p 658
                3.      Note 5-6, p 665
                4.      Fed R. Civ. P. 13(a)
                5.      Martino v. McDonald's System, Inc., p 667
                6.      Notes, pp 671-72
                7.      Searle Brothers v. Searle, p 673
                8.      Note 5, p 679
                9.      Gargallo v. Merrill, Lynch, Pierce, Fenner & Smith, p
                10.     Notes, pp 685-86
          C.     Issue Preclusion
                1.      Introduction, p 685–688
                2.      Illinois Central Gulf RR v. Parks, p 688
                3.      Notes 1, 2, 7, 5, p 690
                4.      Parklaine Hosiery v. Shore, p 695
                5.      Notes 1(a)-(c), 2, p 700
                6.      State Farm v. Century Home Components, p 703
                7.      Note 6, pp 707
          D.     The Boundaries of Preclusion
                1.      Introduction, pp 708-710
                2.      Issue Preclusion, pp 710-712
                3.      The Law of the Case and Judicial Estoppel, pp 712-
                       715–Numbers 1-3 will not likely be covered in class;
                4.      Repose: Collateral Attack & Reopened Judgments, p 715
                       a.      Full Faith & Credit as a Bar, p 715
                              (1)    Durfee v. Duke, p 715
                              (2)    Notes 1-3, p 719
                       b.      The Reopened Judgment as an Alternative to
                              Collateral Attack, p 723
                              (1)    U.S. v. Beggerly, p 723
                              (2)    Notes 1-2, p 725
                5.     One Final Case–to see where we have been;
                       a.      Federated Dept. Stores v. Moitie, 452 U.S. 394
                              (1981) available on the website
   Those Students whose last names begin with P-Z--Turn in Your
Multiple Choice Questions and Answers regarding the material in

Chapters XI and XII NOW)


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