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I.
Phases of a Lawsuit
A.
STATING
THE
CLAIM
a)
b)
c)
d)
Particularity of Allegations
(1) Rule 8(a) Claims for Relief . . . shall contain:
(a) A short and plain statement of the claim showing that
the pleader is entitled to relief (as well as a statement
of the grounds on which the courts jurisdiction
depends, and demand for judgment for relief sought).
(2) Rule 8(e)(1) each averment to a pleading must be
simple, concise, and direct.
A claim of warranty
(ii)
of misrepresentation
(ii)
(7) Kirksey v. R.J. Reynolds Tobacco Co.- 7th Cir. 1999 Chicago
(a) Plaintiff supposed that a complaint that adhered to
Rule 8(a)(2) is immune from a motion to dismiss.
(b) Rule 8(a)(2) deals with formal adequacy of a
complaint, not its substantive adequacyquality (legal
merit).
(c) An unresponsive response is no response, Plaintiff was
wrong in refusing to respond to the motion to dismiss
(d) Judges are busy people- if they see reason to dismiss a
complaint, they arent going to do plaintiffs research
to see if theres something there
3
(8) The court is not going to spend time fleshing out the facts
in the complaint.
e)
f)
What is a Claim?
(1) Definition of a claim- analogous to a cause of action but
not necessarily the same. Its difficult to distinguish bcbw
alternative statements of a single claim and multiple
claims.
(2) Can be a single legal theory or a single natural grouping of
events.
(3) Rule 18(a)- minimizes the distinction by permitting P to join
all his claims either independently or in the alternative.
g)
(ii)
(b) P was alleging that police were in secret test with CapStun
(7) Heimbaugh v. City & County of San Francisco 1984
(a) Softball player protests a hardball only rule, alleging
his right to democracy to play where he wants
frivolous suit
(b) Plaintiff alleges he has been deprived of his rights
under the 1st, 4th, and 14th Amendments also, alleges
numerous torts
(c) rules for summary judgment and sanctions under
Rule 11.
(d) Judge found:
(i)
(ii)
(f)
(e)
(f)
Rule 15 (b)(2)
(c)
Pleading Requirements
(1) Letherman v. Tarrant County Narcotics 1993
8
(ii)
(ii)
(f)
(i)
(ii)
2.
DEFENSES
a)
AND
OBJECTIONS
(ii)
(c) Rule 8(b) Plaintiff does state a claim upon which relief
can be granted defendant denies the truth of one or
more of the allegations:
(d) Rule 8(c) Plaintiff does state a claim upon which relief
can be granted defendant asserts affirmative
defenses, for example:
(i)
Statute of Limitations
(ii)
Contributory Negligence
b)
Sierocinski Case
Insufficient defense
(ii)
One exception may be raised in a second preanswer motion 12(b)(1) lack of subject-matter
jurisdiction may be raised at any time [Rule 12(h)
(3)]
11
(iv) Rule 12(h)(3) Rule 12(b)(1) lack of subjectmatter jurisdiction may be raised at any time
(2) Defenses properly raised by answer
(a) Rule 8(d) must deny all averments if no denial
denial is seen as an admission of guilt and allegations
stand for purposes of litigation
(i)
(ii)
(ii)
(3) Objections under 12(e) & (f) must be raised in initial preanswer motion
(a) 12(e) and 12(f) deal with vagueness and redundancy.
cant interpose one of these objections if he omitted
it from motion or after has answered already. Court
may strike on own initiative though.
(4) Policy- the point of these Rules is to ensure a case is
decided on its merits, and not on procedural points.
Another reason is to eliminate traps and protect clients
from their lawyers mistakes.
(5) HYPOTHETICAL Mental Anguish Case page 4850, question
1620
(a) Plaintiff claims damages for mental anguish suffered
by him by reason of defendants negligence
(b) Defense counsel knows:
(i)
(ii)
(ii)
(ii)
Defenses to include:
(a)
13
(ii)
(f)
(ii)
(ii)
14
(ii)
(ii)
15
(iii) When does trial end read rule to mean that the
trial includes 10-day grace period before
judgment is entered.
(iv) Rules should be interpreted broadly intent is to
preserve this kind of defense
16
3.
REPLYING
TO
DEFENSES
a)
b)
17
4.
COUNTERCLAIMS
a)
(ii)
Permissive Counterclaims
(1) Rule 13(b) bring as a counterclaim any claim against the
opposing party that by definition doesnt arise out of the
same transaction as opponents claim
(2) Rule 42(b) the court is authorized to order separate trials
18
Transaction or Occurrence
(1) Rules 13(a) & (b) use words transaction and
occurrence legal chameleon relatively few opinions
clarifying definitions
(2) Williams v. Robinson 1940
(a) Woman sues for maintenance man sues for divorce,
adultery transaction
(b) In Robinsons counterclaim accuses wife of adultery
and joins Williams as plaintiff.
(c) Williams answers counterclaim with denial of act of
adultery
(d) Williams sues Robinson in separate action libel and
slander
(e) Robinson moves to dismiss libel and slander should
be compulsory same transaction
(f)
Court found:
(i)
(ii)
(ii)
19
(ii)
Responding to Counterclaim
(1) Counterclaims (compulsory & permissive) treated like a
complaint for pleading purposes
(a) Plaintiff assumes role of defendant in pleading
counterclaim. They must reply in the same way a
defendant replies to a counter claim.
(b) Default judgment occurs if plaintiff fails to respond to
counterclaim.
e)
20
5.
AMENDING
a)
THE
PLEADINGS
(ii)
21
d)
23
e)
(ii)
(4) What if the seeks to add a new defendant? Rule 15(c)(3)if previous Rule 15 provisions satisfied and should have
known hed be added or P wouldve wanted him anyway
allowed. Read rule.
25
6.
DISCOVERY
a)
b)
c)
(a)
(d) Rule 26(b)(2)- specific provisions authorizing case-bycase judicial supervision of duplicative or
disproportionate discovery and also regarding
discovery of certain materials prepared by or for a
party or his representative in anticipation of litigation
or for trial- rule 26(b)(3)
(e) Rule 26(b)(4)- discovery of expert information
(f)
(ii)
27
d)
1993 Amendment
(1) Rule 26(a) New Disclosure System
(a) Rule 26(a)(1)
(i)
(ii)
(ii)
(ii)
(ii)
(ii)
29
Rule 30(b)(1):
(a)
(ii)
Non-party Rule 45
(a)
30
(a)
(4) Objections
(a) Two situations:
(i)
(ii)
(ii)
32
(ii)
(ii)
33
(ii)
(ii)
35
g)
h)
(ii)
(ii)
Organized by request
36
i)
(ii)
(d) Rule Party must show good cause and condition must
be in controversy
37
(ii)
(ii)
(ii)
38
(ii)
(ii)
(ii)
(ii)
40
(f)
(j)
41
(i)
(j)
42
j)
Supplementation of Responses
(1) When to supplement Rule 26(e)
(a) When responding party has new information about the
identity or location of persons with knowledge of
discoverable matters
(b) When the responding party obtains information from
which he actually knows that his response was
incorrect when made, and
(c) When the responding party obtains information from
which he actually knows that his response is no longer
true and the circumstances are such that failure to
amend it would be in substance knowing
concealment
(2) Calling a non-disclosed witness
(a) Judge might exclude the evidence
(b) Judge might grant a continuance to deal with the new
evidence
(3) Surprise witness comes forward with unfavorable testimony
must disclose
k)
(ii)
43
(v)
(c) Rule 32(a)(4) The other party has used the deposition
(d) Why the preference for live testimony?
(i)
(ii)
(ii)
45
l)
Work Product
(1) Must ask some questions about the information
(a) Is it relevant?
(b) Subject to the attorney client privilege?
(2) Hickman v. Taylor 1947, p. 549
(a) Tugboat accident attorney work product
(b) Facts:
(i)
(ii)
(ii)
(ii)
(ii)
(ii)
(f)
(ii)
48
(ii)
(ii)
(ii)
Under Hickman:
(a)
(ii)
Under Hickman:
(a)
50
m) Persons
Own Statements
(ii)
(ii)
53
o)
(ii)
55
7.
DEVICES
FOR
a)
b)
57
c)
(d) Rule 56(e) The opposing party may file like affidavits
(e) Affidavits must set forth such facts as would be
admissible in evidence
(f)
Pleadings
(ii)
Depositions
(ii)
(ii)
(j)
(ii)
(ii)
(iii) Jury can see plaintiffs story and give big damages
(iv) Burden of production is steep for plaintiff to
prevail on this motion
(c) Usually you dont see a motion for summary judgment
granted in a negligence case this is negligence per se
59
(ii)
60
(f)
(ii)
(ii)
(c)
(i)
(ii)
(ii)
(ii)
(ii)
(ii)
64
B.
THE JURY
a)
General
(1) 7th Amendment guarantees a right to a jury trial
(a) In suits at common law where value in controversy is
over $20 the right of trial by jury shall be preserved
and no fact tried by a jury shall be otherwise examined
by any other court
(2) Determining whether or not a case will reach a jury:
(a) Judge may not let the case go to the jury if there is not
enough evidence
(b) Jury right may be waived if not claimed
(i)
Jury Characteristics
(1) Is the number of jurors right? (Williams v. Florida)
(a) A six-person jury, acting unanimously in a criminal
trial is Constitutional (State court). 6th amendment is
relative to criminal cases.
(b) Most district courts changed to six-person juries in civil
trials
(2) Rule 48
(a) Federal courts seat not fewer than 6, not more than 12
jurors
(b) Unless parties stipulate otherwise:
(i)
65
(ii)
(ii)
(g) More likely to find a dominant juror when there are 12,
but its harder to persuade eleven others than 5
others. Smaller jury might be more persuadable.
(5) Unanimous five-person juries violate the Constitution
(Ballew v. Georgia)
(a) Groups below 6 would:
(i)
(ii)
(ii)
67
c)
Jury Selection
(1) General
(a) Largely a matter of local rule and practice
(b) Litigants are entitled to fair and impartial jurors of a
cross-section of the community.
(c) Ordinarily voter registration lists were used:
(i)
(ii)
(ii)
(ii)
(ii)
(i)
69
ORDER
AND
d)
METHOD
OF
PROOF
Burden of Proof
(1) The party who suffers the consequences of nonpersuasion
is said to have the burden of proof
(2) Burden of persuasion and production may start with plaintiff
and then switch to defendant.
Wigmore Diagram
Judge
Jury
Judge
W----------X-------------------Y-----------------Z
Plaintiff starts at W and must get beyond X to make a jury question of
A (the issue fact in question). If he gets beyond Y he is entitled to
judgment as a matter of law, unless defendant counters with enough
evidence to take the case back beyond Y into X-Y area. Then its back
to a case for the jury. Defense may even push evidence to W-X area
and be entitled to judgment as a matter of law. Either way, at end if
the case is between x and Y, its a question for the jury
(3) Burden of Production- a matter for the judge to decide
(a) Test whether the party has sufficient evidence to go to
the jury
(b) Generally, burden of production follows pleadings
(i)
(ii)
(ii)
(ii)
(f)
(ii)
(f)
(i)
(ii)
(i)
(ii)
(ii)
(a)
(ii)
(ii)
76
e)
Order of proof
(1) Ordinarily plaintiff has initial obligation to bring forward
evidence in support of the disputed elements of the claim
(a) Why is this? He is launching a claim that we have no
reason to suppose is meritorious.
(2) Process:
(a) Opening Statements
(i)
(ii)
(ii)
(ii)
78
2.
MOTIONS
a)
AT THE
CLOSE
OF
ALL
THE
General
(1) Same standard as summary judgment
(2) Judge is held to a reasonable jury standard
b)
c)
d)
(ii)
(ii)
(ii)
(e) Some argue that test laid out in FELA cases is the
standard that should be applied to states
(f)
(ii)
83
3.
SUBMISSION
a)
TO JURY AND
RETURN
OF
VERDICT
PG
179
Types of Verdicts
(1) Different Forms of a Jury Verdict
(a) Special Verdict [Rule 49(a)] jury makes specific
findings of fact and judge applies the law to the facts
(b) General Verdict [Rule 49(b)] judge instructs the jury
on the law and the jury applies the law to the facts
many times interrogatories accompany jury charge
Only says who wins.
(c) Judge determines the type of verdict to use
(2) Advantages of Special Verdict
(a) Gives the court more power
(b) The jury doesnt have to apply the lawjudge can
more aptly apply the law
(i)
84
b)
(ii)
(ii)
85
4.
b)
(ii)
(ii)
87
C.
GENERAL
a)
Federal Courts
(1) Power of federal government is limited
(2) Only those powers which are enumerated in Article III of the
United States Constitution are what Federal Courts may
hear (10th amendment)
(3) Federal cases are only a fraction of the casesthe rest of
the cases the states must pick up
b)
State Courts
(1) Even Article III cases can be heard by state as long as
Congress has not prohibited it
(a) Unless theres an affirmative reason they cant hear it,
a state can hear a case.
2.
OF THE
STATES
a)
b)
c)
Types of jurisdiction:
(1) Mostly assume Concurrent state and federal court has
ability to hear the case, much of federal jurisdiction is
concurrent
(2) Exclusive only a state or federal court may hear a case
(ex. Federal antitrust)
(3) Limited --- court can only hear cases allocated to it by law
(all Federal courts, those in Art. III)
(4) General court can hear any case unless denied to it by law
(a) State courts are courts of general J
88
(ii)
89
3.
OF THE
UNTIED STATES
General
(1) What must occur for a federal court to hear a case?
(a) Jurisdiction must be granted in Article III Constitutional
basis
(b) Congress must have provided by statute the
jurisdiction to hear that type of case Statutory basis
b)
Article III
(1) Outer bound of judicial power of the United States is fixed
by Article III
(2) Article III makes Federal Courts courts of limited jurisdiction
rather than general jurisdiction
(3) Jurisdiction dependent upon the content or nature of the
claim:
(a) Federal question cases arising under the Constitution,
laws of the United States, and treaties
(b) Cases of admiralty and maritime jurisdiction
(4) Jurisdiction dependent upon the types of parties
(a) Cases involving ambassadors, public ministers, and
consuls
(b) Cases between two or more states
(c) Cases with the United States as a party
(d) Cases with citizens of different statesdiversity
jurisdiction
(5) Amendment to Article III
(a) Article III included cases between a state and a citizen
of another state or between a state and its own citizen
(b) 11th Amendment removed this jurisdiction from the
federal government
(6) Justiciable Issues:
(a) Dispute must not be hypothetical- fed. Cts. Cannot
give advisory opinions states can
(b) Dispute must be live and must not already be resolved
by events
90
91
4.
HOW CONGRESS
COURTS
a)
HAS
IN THE
DISTRICT
b)
c)
d)
5.
28 U.S.C. 1331
(1) The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of
the United States
(2) Not exclusive jurisdiction
(3) Construed more narrowly than identical language in
Art.Sec. III.
b)
c)
d)
(ii)
95
6.
THE DIVERSITY
OF
CITIZENSHIP PROVISION
a)
Only kind of jurisdiction that the federal courts had for the first
85 years of existence
b)
28 U.S.C. 1332
(1) 1332(a) matter in controversy must be over $75,000
exclusive of interests and costs
(a) Citizens of different states
(b) Citizens of a State and citizens or subjects of a foreign
state
(c) Citizens of different states and in which citizens or
subjects of a foreign state are additional parties
(d) A foreign state as plaintiff and citizens of a state or of
different states
(2) 1332(b) if case is finally adjudged at less than $75,000
(not counting setoff or counterclaim to defendant) then the
plaintiff is subject to:
(a) Denial of costs
(b) Imposition of costs
(3) 1332(c)(1) a corporation is deemed to be a citizen of
any state by which it has been incorporated and of the
state where it has its principle place of business
c)
Determining Citizenship
(1) Citizenship at the time the action commenced is controlling
(2) Citizenship must be completely diverseno defendant can
be citizen of same state as any plaintiff
(3) Domicile Test (Baker v. Keck)
(a) Plaintiff alleges conspiracy from transaction in Illinois
after moving to Oklahoma
(i)
(ii)
Standard:
(a)
(a) 1332(c)(1)
(i)
(ii)
(b) Most courts use this test (as did the Kelly
court)
(iii) Makes sense to use Total Activities Test:
(a)
d)
(i)
(ii)
99
7.
REMOVAL
a)
OF JURISDICTION OF THE
DISTRICT COURTS
General
(1) Sometimes Congress allows the defendant the power to
select the federal forum
(2) Federal court must have original jurisdiction over the case
for the defendant to remove case to federal court
(3) If the defendant selects the federal forum and the subject
matter jurisdiction is met then the plaintiff cannot remove
to the state court
b)
28 U.S.C. 1441
(1) 1441(a)
(a) Diversity of citizenship makes case removable
(b) Actions under FELA may not be removed
(i)
Railroad employees
(ii)
Seamen
(2) 1441(b)
(a) All federal issues are removableregardless of
citizenship
(b) If not federal issue and defendant is being sued in his
own state courtnot removable
(3) Removal must be made within 30 days
100
8.
POSSIBLE REVIEW
a)
BY THE
SUPREME COURT
OF
General
(1) United States Supreme Court can review any case from the
state courts where the issue turned upon an issue
concerning federal law
(2) United States Supreme Court cannot review state law cases
b)
(ii)
101
9.
A. State Law
Issue: What law should be applied in the cases of diversity of
citizenship.
- The federal court has judicial power to hear this case, even though
there is no federal legislative power to create the governing law.
1. Introduction- Swift v. Tyson (Where do they look at)
-
Rules:
(1)Swift court found that the Rules of Decision Act (28
U.S.C. 1652) meant that it only referred to the State statutes.
This act stated that the law of the several states shall be
regarded as rules of decision in trials at common law in the
courts of the U.S. federal courts.
(2) The judge can still decide whether the prior judges in federal
law had made the right decision or not, so he can change the law
if he believes that it is right in his case.
court)
Facts: T was injured by a passing freight train of the Erie Railroad
Co. while walking along its right of way. He was walking along a
footpath. He claimed that the accident occurred through negligence
102
103
106
If the highest court is likely to overrule the case the federal court
may look to lower courts, ,dicta
109
Analysis:
- This time there was a conflict between the rules.
Notes:
-
Definitions by a commentator
118
119
II.
Authority to Adjudicate
A.
Supplemental Jurisdiction
1.
Federal Question
a)
(ii)
Defined
(1) Used when a single plaintiff has a claim properly in federal
court against a single defendant and the plaintiff appends
onto his claim that in and of itself cannot be brought in
federal court independently
120
(2) Could arise when first claim is based upon federal law and
non-diverse plaintiff seeks to add a claim under state law
(3) Federal court can choose whether to use pendent claim or
not.
b)
Policies Promoted
(1) Judicial efficiencymore efficient to have a single resolution
of related cases
(2) Encourages litigants to vindicate their federal claims in
federal courts, where the federal judge has more expertise
and sympathy in federal issues.
c)
Critique
(1) Expands federal court jurisdiction without constitutional
support
(2) Constitutional question was resolved in sodfjof when the
S.C. stated that federal question is more than just the
question but the entire case.
d)
(ii)
121
(ii)
(ii)
(ii)
122
Facts:
(a)
(ii)
Yes because
(i)
Efficiency
(ii)
(ii)
(c)
(v)
(i)
(ii)
(ii)
(iii) Subsection A
(a)
(ii)
Subsection C
(a)
(ii)
126
The Framework
a)
History
(1) Early English proceduresheriff would arrest the defendant
and he would await trial in jail
(2) Eventually abandoned this idea and jurisdiction was
established by service of process
b)
(b) Lower court found for Neff because the affidavit was
improper because of the power limited to the court not
whether the defendant received notice.
(3)
127
(i)
(ii)
(iii) By consent
(iv) When impossible to serve others inside forum
state there are other alternativesin rem and
quasi in rem
(b) In Rem Jurisdiction
(i)
(ii)
c)
(i)
(ii)
(2) Plaintiff only has to direct the action toward some specific
in-state property at the onset of the action
(3) Butmost states require seizure of the property as a
prerequisite for non-personal jurisdiction
d)
e)
(c)
(i)
(ii)
(ii)
c)
d)
132
(i)
(ii)
Problems:
(a)
(ii)
e)
(ii)
(i)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
(iii)
(ii)
Considerations
(i)
(ii)
Jurisdictional Statutes
(1) Relaxation of jurisdiction authority in International Shoe
encouraged states to expand their jurisdictional reach
(2) Long-arm Statutes in General:
(a) Base jurisdiction on defendants activities within the
forum state or
(b) Commission of any one of a series of enumerated acts
within the jurisdiction
136
Interests
(a)
State
(i)
(ii)
(ii)
C.
(i)
(ii)
2 beneficiaries reps
(a)
Income beneficiaries
(ii)
(ii)
139
(ii)
(e)
(i)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
(v)
(ii)
Power Branch
(a)
(ii)
Two examples:
(i)
(ii)
Convenience Branch
(a)
Burden on defendant
(ii)
Differences
(i)
(ii)
Justice OConnor
(i)
(ii)
145
(v)
(ii)
(ii)
(i)
(ii)
(ii)
Justice Scalia
(a)
(ii)
147
(ii)
Justice Brennan
(a)
(ii)
148
(ii)
B.
Venue
1.
2.
Examples
1.
Choosing venue
a)
b)
2.
C.
sued
28 U.S.C. 1391
1.
b)
c)
149
2.
b)
c)
3.
4.
5.
Hoffman v. Blaski
(a)
151
(ii)
(ii)
(ii)
(ii)
(ii)
(a)
(ii)
Plane manufacturers
. Transfer
(1) Permits transfer to a more convenient forum even though
venue is proper
(2) Norwood v. Kirkpatrick says that it allows an easier showing
of convenience that when the standard was to dismiss. The
factors are still from Gulf Oil, but the courts discretion is
wider.
(3) After 1404(a) plaintiff can take advantage of transfer of
cases as opposed to when there was only dismissal
(a) Reasons
154
(i)
Corporations
a)
b)
IV.
Opportunity to be heard
A.
General Observations
1.
Mullane revisited
a)
b)
Attachment of property
(i)
2.
3.
4.
Fuentes v. Shevin
a)
FACTS
(1) P purchased stove and stereo under conditional sales K that
provided for monthly payments and repossession by seller
in case of default in pmt. by buyer
(2) Seller retained a UCC security interest in goods pending full
payment, but buyer was entitled to possession absent
default
(3) a year later, after a dispute over servicing the stove, P still
owed $200 (of the approx. $600 total)
(4) seller brought action for repossession, and obtained writ of
replevin ordering state agents to seize stove and stereo
(5) Florida statute provides for summary issuance of writ of
replevin upon ex parte application to ct. by someone suing
on claim to possession of wrongfully detained property
and upon the Ps posting of a bond for double the value of
the property
156
(a) property is held for 3 days by the agent who makes the
seizure, during which time D may regain possession of
the property upon posting his own bond for double the
propertys value
(b) if D does not act, the property then passes to P,
pending the final disposition of the underlying
repossession action
(6) P sued in fed. court shortly after the seizure, on procedural
due process grounds, and he lost
(7) Supr. Ct. held that the Florida procedure violated the 14th
Am. by failure to provide notice and opportunity to be heard
before deprivation of a possessory interest in property
(a) prior hearing result is the only truly effective safeguard
against arbitrary deprivation of property
(b) Ct. idea is that competing presentations at the preseizure hearing is the best way to ensure accuracy and
prevent mistaken deprivations of property
(8) if accuracy is the goal, then why is the adversary
proceeding the only way?
(a)
(9) how meaningful is a pre-procedure hearing that deals with
seizure?
(10)hearing is requires except in extraordinary situations
(a) when the seizure is absolutely necessary to appear in
court and
(b) special need for prompt action
(c) person initiating seizure is a government official
(11)however, seizure prior to hearing might be allowable where
creditor can make a showing that other party may destroy,
etc. the evidence (property)
(12)why should creditors care about these hearings?
(a) efficiency?
(i)
(b) cost?
(i)
157
(ii)
FACTS
(1) Di-Chem sued N. Ga. for goods sold and delivered,
simultaneously obtaining process for garnishing Ds bank
account from clerk
(a) Plaintiff or attorney had to
(i)
159
c)
S.C. says
(1) Ga. ct. failed to apply Fuentes
(2) Ga. statute was vulnerable for the same reasons in Fuentes
(3) Bank account was garnished by issuance of court clerk
(without notice to D, or participation of judicial officer)
(4) Mitchell case didnt say procedure statute didnt require
that judge issue writ, and affidavit didnt go beyond
conclusory assertions
(5) Ct. relied in part on Fuentes
(6) Would Ga. statute have been acceptable if it provided for an
immediate post-seizure hearing?
(a) Probably not b/c Mitchell seemed to require the
additional safeguards (posting bond, etc?????)
7.
Connecticut v. Doehr
a)
b)
c)
(ii)
(ii)
FACTS:
(1) Warehousing company Ks. And the company defaults on
payments. After renegotiation work was resumed and
Overmyer was satisfied, but asked for more time to pay
installment payments. New K with
(a) New K had cognovits - consent to obtaining a judgment
without hearing
(b) Both parties were corporate parties represented by
counsel
b)
161
(a) Yes. Just like people can waive 5th amendment rights if
they are done voluntary, intentionally, knowingly, and
intelligently made
c)
(i)
(ii)
APPLICATION:
(1) How as the seller would you draft a K to get the cognovits
term to apply? Make sure there
(a) Have the consideration
(b) Make it clear with notice
(c) Discuss negotiation
(2) How would you argue it was unconstitutional
(a) Too fundamental to be waived
(b) No consideration
(c) Unequal bargaining power
V.
Contours of Litigation
A.
Former Adjudication
1.
General Observations
a)
(ii)
(i)
(ii)
Claim is extinguished
b)
(i)
(ii)
c)
Final Judgments
(1) Claim preclusionjudgment that terminates litigation on
the merits and leaves nothing to be done but enforce the
judgment bars grounds that are not presented
(a) sues for personal injury from car accident. After
judgment of fault (leaving damages for later) in s
favor. brings separate suit for property damage
arising from the same accident. pleads claim
preclusion. Claim preclusion is not effective because
the case is not terminated and is still waiting on the
damages.
163
Claim Preclusion
a)
Dimensions of a Claim
(1) Claim preclusion prohibits the re-litigation of a claim must
ask: When are claims identical? What is the identity of a
claim?
(2) Williamson v. Columbia Gas & Electric Corp.
(a) 1st ActionPlaintiff alleged defendant conspired to
violate antitrust laws, Sherman Act (conspiracy)
(b) 2nd ActionPlaintiff sued defendant on Clayton Act
(alleged defendant acted alone)
(c) Actions in the same court at the same time based upon
same actions of the defendant (trying to take over
plaintiffs business)
(d) Lost in 2nd action due to stipulation and statute of
limitations
(e) Defendant motions for summary judgment on the 1st
action claiming res judicata
(f)
Procedural issues
(i)
(ii)
(i)
(ii)
(ii)
(ii)
(ii)
165
(i)
(ii)
Pending Case
(i)
(ii)
(ii)
(ii)
2nd actiontrespass
(c)
(v)
(i)
(ii)
167
(a)
Facts
(a)
(ii)
168
(c)
(iv) Court
(a)
(c)
(ii)
(ii)
(c)
(v)
(i)
(ii)
(ii)
(ii)
It loses money
(a)
Causes of action
(i)
(ii)
(f)
(i)
(ii)
Harrington
(i)
(ii)
(v)
(ii)
Better approach
173
(a)
Counterclaim
(1) When a defendant actually raises a counterclaim then all
aspects of it are subject to the rules of claim preclusion,
and must assert all claims that arise out of the transaction.
(2) What happens when a defendant fails to raise a
counterclaim that arises out of the same situation
(a) Multiple situations
(i)
(ii)
(v)
(ii)
(ii)
Whitney v. Dindo
(i)
(ii)
175
a)
b)
Executrix won.
(ii)
(d) Executrix was bound by the 1st action even though she
was not a party
(i)
(ii)
(ii)
(ii)
(f)
(i)
(ii)
(ii)
177
(ii)
(iii) Stipulations
(iv) Judgments on settlement
(v)
(ii)
(ii)
(ii)
178
(ii)
179
(ii)
(ii)
(ii)
c)
181
(a)
(b) Arguments
(i)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
May be applicable
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
Hard
(ii)
(ii)
190
(ii)
(i)
(ii)
Parklane v. Shore
(a)
(f)
Supreme Court
(i)
(ii)
(ii)
191
(ii)
193