Civil Procedure

js5389's version from 2015-12-10 18:59

Due Process

Question Answer
First Element of Due Process1. Notice
2. Hearing (both parties present)
3. In front of a judge/other neutral arbiter
4. Timely (hearing within a reasonable period of time)
5. Right to counsel
Fuentes v. Shevin FactsF: Fuentes stops paying for her stove
Fuentes v. Shevin ElementsElements:
1. Bond
2. "Statement of Right"
Fuentes v. Shevin HoldingH: The FL (and PA – companion case) statutes are unconstitutional because they did not provide notice or a timely opportunity to be heard in front of a neutral arbiter
Fuentes v. Shevin TakeawaysTakeaway:
- DP is less exacting when the gov’t acts on its own behalf (in the state’s interest); more exacting when the gov’t is acting on behalf of a private party (sheriff acting as Firestone’s agent)
- The court essentially holds that due process is required under all circumstances
Mitchell v. Grant FactsF: Grant alleges that Mitchell owes him a debt.
Mitchell v. Grant ElementsElements:
1. Affidavit with specific facts proving the debt exits
2. Post a bond
3. Documentary evidence of the parties’ agreement
4. Judge reviews this stuff and issues the writ (This isn’t materially different than the clerk in the FL law, it just sounds better semantically  both are just rubber stamping)
5. **There are post-judgment damages and fees/other remedies if the deprivation turns out to be erroneous**
Mitchell v. Grant HoldingH: LA sequestration statutes does not violate the 14th Amendment’s DP clause b/c the party seeking the writ has to provide specific documentary evidence of the agreement and the debt, a bond, and the law provides immediate post deprivation hearing and post judgment remedies.
Mitchell v. Grant TakeawaysTakeaway:
- This basically overturns the majority holding in Fuentes!
North GA Finishing v. Di-Chem FatsF: GA has Di-Chem’s entire account frozen as collateral for recovery on an alleged debt (for less than the amount in the whole account).
North GA Finishing v. Di-Chem ElementsElements: Law basically has no requirements
North GA Finishing v. Di-Chem HoldingH: GA law is unconstitutional b/c it allows for the pre-judgment seizure of property where mistaken deprivation is likely and there are no satisfactory safeguards in place to
Goldberg v. Kelly FactsF: NYC welfare law cut off benefits if you were working or living w/someone who was working, so inspectors would come in to poor women’s apt’s, see “evidence” that a man was living there and immediately cut off funds.
Goldberg v. Kelly ElementsElements:
1. There was a hearing within a month
2. if the depriv was wrong, you immediately got the benefits back
Goldberg v. Kelly HoldingH: Unconstitutional, b/c the state cannot take away someone’s welfare benefits without the opportunity for a full hearing w/cross examination
1. It was important WHAT was being taken here – people’s ability to live, essentially
2. The holding’s language was categorical: the state MUST provide NOTICE and HEARING pre-deprivation
Matthews v. Eldridge FactsF: there was a suspicion of fraud in the social security benefits system. A law allowed dr’s to tell the state to immediately take away benefits from a patient who, after examination, the dr thinks is faking his inability to work.
Matthews v. Eldridge HoldingH: Ultimately held that the law was constitutional b/c the risk of error is low, the state interest is significant and while the private interest is also significant, the balance of the factors weighs in favor of swift state action. Also post-j’mt remedies available for erroneous deprivation.
DUE PROCESS BALANCING TEST Step 11. ∆'s interest
- less when it’s a stove (Fuentes), more when its your welfare benefits (Goldberg)
- Figure this out by comparing cases
DUE PROCESS BALANCING TEST Step 22. Public (π’s/usually gov’t) interest
- Is it direct/on the public’s behalf (i.e. welfare benefits) and thus higher? Or is it indirect/on a private party’s behalf (i.e. seizing Fuentes’ stove on behalf of Firestone) and thus lower?
DUE PROCESS BALANCING TEST Step 3-43. Risk of erroneous deprivation and cost/benefit of extra process
An inspector who just sees shoes under the bed (Golberg) or two competitors who can freeze each others assets without real proof as to why this is necessary (Di-Chem) have a higher risk of erroneously taking than does a doctor (Mathews) due to his expertise.
- Basically, White's checklist MUST be met unless there is a REALLY low risk of error
How to apply Due Process Analysis1. Is risk of erron. depriv high or low? Is there an incentive for π to take ∆’s stuff erroneously? Is this a sloppy/careless process?
2. Contrast requirements deemed sufficient in other cases to the present circumstances. Are there sufficient safeguards for this level of risk?
3. ASK: what would be the cost of reducing the chance of mistake by investing in more process? IF TOO HIGH (Mathews – dr has (supposedly) no incentive to wrongly take away benefits)), then CONSTITUTIONAL; if WARRANTED (Di-Chem – competitors have a strong incentive to freeze e/o’s assets), then UNCONSTITUTIONAL
Connecticut v. Doehr FactsF: Doehr and DiGiovanni got in a bar fight. DiG sued Doehr, invoked the CT prejudgment attachment statute, which allows Doehr to get a security interest lien on the DiG’s home so that he can’t sell/do anything else with it (he can still live there tho) while the trial is pending.
Connecticut v. Doehr HoldingH: CT law is unconstitutional b/c π’s interest is LOW, ∆’s interest in LOWish, risk of error is HIGH and additional process would decrease this risk
Van Harken v. Chicago FactsF: Chicago changed its parking laws from civil to criminal offenses (nothing wrong with that). Financial penalties remain roughly equivalent; ticketing office doesn’t have to show up at a hearing if someone wants to contest it (ticket serves as evidence). Hearings are presided over by attys paid $35/day by the city.
Van Harken v. Chicago HoldingH: Chicago’s parking law’s procedures are constitutional b/c gov’t interest is more substantial than the private interest, risk of error is low, and increased process wouldn’t lower the risk any further
Hamdi v. RumsfeldH: Citizen-detainne seeking to challenge his classification as an enemy combatant must receive notice of factual basis of his classification and a fair opportunity to rebut the government’s factual assertions before a neutral decision maker.
Some due process is always due Economic factors can NEVER push to zero, because of demoralization of citizenry.(Mathews can never go to zero)


White's ElementsFloridaLouisianaGeorgia
Specific AllegationsNOYESYES
Hearing in front of a judgeNOYESNO
Meaningful Post-Judgment RemedyNOYESNO
Constitutional?NO (White Dissenting)YESNO


Matthews ExamplesGoldbergMathewsDeath PenaltyCt. v. DoehrVan Harkin
Private Int.HighHigh (but can go on welfare)HighestLowLow
State Int.HighHighHighestLowModerate
Risk of ErrorHighHighHighestHighLow


Question Answer
Problem with Pre-Notice PleadingAsymmetric Information
Rule 1
Rule 3
Rule 7
Rule 8(a)
Rule 8(d)(2)
Rule 9(b)
Question Answer
Rule 12(e)
Rule 12(b)


Question Answer
Conley v. Gibson established the modern rule of liberal pleading
- complaint should not be dismissed for failure to state a claim unless the complainant can prove no set of facts in support of his claim which would entitle him to relief
US v. Board of Harbor Commissioners
US filed a complaint pursuant to Rule 8(a) alleging that ALL of the BoHC companies spilled oil into the DE river between 6/25-11/27 and that they all were responsible. SICO and NASCO challenged this, and filed a 12(e) motion for a more definite statement (complaint is “so vague and ambiguous that the party cannot reasonably prepare a response;” under a 12(e), the complaint is dismissed if there is not more info provided w/in 14 days). ∆’s wanted π’s to say who was liable, the amount of damages, and their evidence for their claims.
US v. Board of Harbor Commissioners
12(e) motion denied b/c π’s complaint satisfies the 8(a) pleading standards: ∆’s are on notice re: claims against them, in a better position to estimate the costs of the oil spill b/c they are a regulated industry and will therefore have access to industry stds (they probably clean up spills all the time). Thus, ∆’s are in the best position to produce it and can bear the costs of finding it out more easily
McCormack v. Koppman Factsπ whose husband died in a drunk driving accident filed complaint against the driver of the car (Koppman) claiming her husband was sober and the tavern (Huls) claiming her husband was drunk.
McCormack v. Koppman HoldingCt permitted this even though it is impossible for them to both be true (like in Harbor Commissioners) b/c alternate pleading is allowed regardless of inconsistency b/c it is assumed that ∆’s are the lowest cost info provider
Tellabs v. Makor Issues Rights Factsissue here is that a statute (PSLRA) requires pleading to contain a strong inference of scienter (state of mind) more stringent std than either 8(a) or 9(b) and places a heavy burden on π.
Tellabs v. Makor Issues Rights HoldingCircuit ct interpreted this as a reasonable person std, but S.Ct. says that the inference must be comparatively stronger than the alternative set of facts
“Strong inference implies surface plausibility”
- Reflects the concern that historically these lawsuits have been used extortionately
- Expresio unis – Court initially tried to narrow heightened pleading requirements to the context of fraud through this principle (the law says what it means to say; if something is not included, it was not mean to be there)
Leathermanif you’re not already in a heightened category, Rule 8 standards are sufficient
Swierkiewicz v. Soremaheightened pleading does not extend to employment discrim cases
Conley Weaknesses1. Harm can be caused beyond the scope of litigation
- We recognize that fraud allegations can be harmful, but what about emp discrim ones? Environmental claims (accusing a company of pollution can lead to backlash)? These are “like” fraud in that π’s are in a good position to have info and the accusations alone have in terrorem value cts have actually started to recognize this and hold these π’s to higher pleading stds
2. Prisoner (“pro-se”) lawsuits presumptively frivolous
3. District court judges see the system is getting bogged down by BS cases
Markman v. Westview IndustriesJudge can determine “terms of art” on the pleadings as a matter of law (more likely to get it right, promotes uniformity and predictability)
Bell Atlantic v. Twomblyreveals the strain that liberal pleading puts on the judicial system’s resources!! We need to weed cases out for efficiency reasons!
Bell Atlantic v. Twombly Ruleyou need a set of plausible facts to support your claim to survive a motion to dismiss
Mitchell v. A&K- 12(b)(6) case Old man trucker carrying goods for ∆ was shot in the face; ∆’s had directed him to park his truck on an adjacent street near their warehouse (but not on their property) to wait to unload. Π admits that he was not on ∆’s premises when shot. ∆’s filed a 12(b)(6) in response to π’s claim b/c he wasn’t actually on the premises when he was shot and π was alleging 5 violated duties that ∆ owed to people on its premises, thus the claim was legally insufficient.



Question Answer
Rule 3
Rule 4
Rule 8(b)
Rule 8(b)(1)
Rule 8(b)(5)
Rule 8(c)
Rule 10(b)
Rule 15(a)(2)
Rule 55(a)
Rule 55(b)(1)
Rule 55(b)(2)
Rule 55(c)
Rule 60(b)


Question Answer
Shepard Claims v. Darrah
Shepard Claims v. Darrah Test1) prejudice to π? (no, π’s would be in the same position they were in pre-default post-default)
2) ∆ have a meritorious defense? (yes – very low std, almost anything counts)
3) did ∆’s culpable conduct lead to default? (no, bad lawyering – we don’t punish the client for lawyer’s sins; conduct only culpable when intended to bog down the system or prejudice π) why ct sets aside ∆’s default here
Zielinski v. Philadelphia Piers (PPI) FactsFacts: π sued ∆ b/c forklift that injured him had ∆’s name written on it, but in fact ∆ had “double breasted,” i.e. spun liability off on Carload Contractors (an insurer), allowing ∆ to be j’mt proof. In discovery, the emp’ee driving the forklift said he thought he worked for and drove a forklift owned by ∆, but this wasn’t true. ∆’s lawyers knew the whole time and didn’t say anything (legal, but shady)
Zielinski v. Philadelphia Piers (PPI) HoldingHolding: Court grants π’s motion in limine to counterfactually tell the jury that the forklift that injured him was owned by ∆ (even though it was actually owned by Carload)
David v. Crompton & Knowlesπ sued ∆ for a product they allegedly owned injury him (∆ had acquired the company that originally produced it; apparently in the k there was a clause allowing ∆ to escape liability for the product’s negligent design). However, apparently ∆ was either being lazy or shady b/c it didn’t reveal this info and π’s obviously didn’t know it existed.


Question Answer
Act badly, no prejudicewe admonish (but don’t punish) you (Shepard)
Act badly with prejudicewe punish you (Zielinski)
Have privileged access to info and don’t produce it leading to prejudicewe punish you (David)