Civil Procedure Fall 2014 | I. Glenn Cohen | June 23, 2014

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Civil Procedure Fall 2014

Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen Show/Hide
Acknowledgements: I undertook this project in the summer of 2013 with the hope of helping students avoid the high costs of textbooks, generating content that could be used and improved upon by others, and tailoring my materials to my own needs. I hope you will enjoy and disseminate it widely. This project is a team one and many people deserve credit. First, the H20 team for helping to create this product and teach me to use it: Dustin Lewis, Emily Ellis, Matthew McKay‎ and Shailin Thomas. Second, my team of RAs/TAs who helped me edit materials, generate new content, etc. They are: Jerry Cedrone, Jeremy Feigenbaum, Laura Myron, Ashwin Phatak, and Veronic Sauer. For Fall 2014, Noah Marks helped me to update the content to reflect the 2013 term and generally improve the materials. Finally, I thank my colleague Bill Rubenstein for letting me adapt some of the content he uses in his course.
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  1. 1 Show/Hide More Introduction
    Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    1. 1.1 Show/Hide More Substantive
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 1.1.1 Show/Hide More Introduction from Friedenthal Miller et al, Civil Procedure (10th ed. 2012)
        This excerpt gives you a good introduction to the scope of our course. It summarizes the course in roughly 24 pages. You may want to return to it often as we do each unit in the course.
    2. 1.2 Show/Hide More Theoretical
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 1.2.1 WHY THE "HAVES" COME OUT AHEAD: SPECULATIONS ON THE LIMITS OF LEGAL CHANGE by Marc Galanter
      2. 1.2.2 Ward Farnsworth, Rules and Standards in THE LEGAL ANALYST (2007)
    3. 1.3 Show/Hide More Simple (?) Introductory Case
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 1.3.1 FRCP 10(a)
      2. 1.3.2 Show/Hide More Doe v. United Services Life Insurance Company
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
  2. 2 Show/Hide More The Basics of Pleading and Rule 11
    Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    1. 2.1 Show/Hide More The "old" Days: Pre-FRCP
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 2.1.1 Pleading” from Yeazell, Civil Procedure, 7th Edition (also read notes 2 and 3 following)
      2. 2.1.2 Cheat Sheet on Basics of Civil Litigation
    2. 2.2 Show/Hide More Pleading Basics in the FRCP system
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 2.2.1 FRCP 8(a), (d) and (e)
      2. 2.2.2 FRCP 84: Forms
      3. 2.2.3 Show/Hide More FRCP Forms 10 - 19 [NOTE DIRECTIONS]
        SKIM Forms 10 – 19, except Form 11, which you are to read more closely. Spend no more than 5 minutes on this.
      4. 2.2.4 Show/Hide More Complaint from Gill v. OPM [NOTE DIRECTIONS]
        Complaint from Gill v. OPM, READ ¶¶ 1-12, ¶¶ 35-58, ¶¶ 329-351, and the “Prayer for Relief” and signature on pages 90 to 91. This should not take you more than 25 minutes. You can SKIM as much of the rest as you like.
    3. 2.3 Show/Hide More Responding to the Complaint by Answer (possibly followed by Reply)
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 2.3.1 FRCP 7
      2. 2.3.2 FRCP 12(a)
      3. 2.3.3 FRCP 8(b) and (c)
      4. 2.3.4 FRCP 6 [SKIM]
      5. 2.3.5 Show/Hide More Answer from Washington University v. Catalona. [SKIM; NOTE DIRECTIONS]
        SKIM the document, spend no more than 15 minutes on it, this is being assigned primarily to show you what an answer looks like.
      6. 2.3.6 Cheat Sheet on Responding to a Complaint
      7. 2.3.7 Cheat Sheet on Motions Practice
    4. 2.4 Show/Hide More Rule 11 and the Truthfulness of Pleadings
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 2.4.1 FRCP 11
      2. 2.4.2 Show/Hide More "Sanctions” materials from Subrin, Minow et al., [NOTE DIRECTIONS]
        After the Chaplin case, ignore notes 7, 9, 10 and the “Practice Exercise No. 12.”
  3. 3 Show/Hide More Preliminaries 1: Notice, Service of Process, Opportunity to be Heard
    Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    1. 3.1 Show/Hide More Notice
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 3.1.1 Show/Hide More Mullane v. Central Hanover Bank & Trust Co. [NOTE COMMENT]
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        While I have given you portions of the case pertaining to notice as well as the in personam v. in rem distinction, focus on the notice materials, which are the core of the case. The rest is an appetizer for the personal jurisdiction section of the course.
      2. 3.1.2 Show/Hide More Dusenbery v. United States
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      3. 3.1.3 Show/Hide More Greene v. Lindsey
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      4. 3.1.4 Show/Hide More Jones v. Flowers
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    2. 3.2 Show/Hide More III.B. Service of Process
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 3.2.1 Show/Hide More Basics
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 3.2.1.1 Cheat Sheet on Service of Process in the Federal System
        2. 3.2.1.2 FRCP 3
        3. 3.2.1.3 FRCP 4(a) – (f), (h), (m)
        4. 3.2.1.4 FRCP 12(b)(4), (5)
        5. 3.2.1.5 Show/Hide More FRCP Forms 3 - 6 [NOTE DIRECTIONS]
          Just glance at them.
        6. 3.2.1.6 Show/Hide More Insurance Co. of North America v. S/S "Hellenic Challenger"
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      2. 3.2.2 Show/Hide More Immunity and Etiquette
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 3.2.2.1 Article IV, Section 1 of the United States Constitution
        2. 3.2.2.2 Show/Hide More Wyman v. Newhouse
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    3. 3.3 Show/Hide More Opportunity To Be Heard
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 3.3.1 Show/Hide More Deprivations by the State
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 3.3.1.1 Show/Hide More Goldberg v. Kelly
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        2. 3.3.1.2 Show/Hide More Mathews v. Eldridge
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      2. 3.3.2 Show/Hide More Deprivation by "Private" Individuals
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 3.3.2.1 Show/Hide More FRCP 64
          Federal Rules of Civil Procedure Rule 64: Seizing a Person or Property
        2. 3.3.2.2 Show/Hide More Fuentes v. Shevin
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        3. 3.3.2.3 Show/Hide More Connecticut v. Doehr
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        4. 3.3.2.4 Show/Hide More Shaumyan v. O'Neill [NOTE DIRECTIONS]
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen

          [SKIM THIS – We won't spend a lot of time on it.]

          Did the statute in Doehr die after the Supreme Court decision? Not quite . . . .

          This case involved a fight between a homeowner and contractor hired to do repairs. When the homeowner was not happy with the quality of the work he would not pay. The contractor retaliated by getting an ex parte prejudgment attachment of the owner's home. While that state case was pending, the homeowner sued in FEDERAL court to block the application of the attachment statute as unconstitutional after Doehr.

          How did the Second Circuit court of appeals rule? Was this case distinguishable?

      3. 3.3.3 Show/Hide More Contemporary Application: Enemy Combatants and Others
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 3.3.3.1 Show/Hide More Hamdi v. Rumsfeld [NOTE DIRECTIONS]
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
          In the majority opinion, focus on the section from paragraph 80 on.
        2. 3.3.3.2 Cohen Cheat Sheet on Attorney-Client Privilege and Work Product Privilege.
        3. 3.3.3.3 The No-Fly List Problem
      4. 3.3.4 Show/Hide More Introduction to Remedies: Preliminary Injunctions and TROs
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 3.3.4.1 Show/Hide More FRCP 65 (a)(1), (b), (c), (d)
          Please read FRCP 65 (a)(1), (b), ©, (d)
        2. 3.3.4.2 Show/Hide More Chaplaincy of Full Gospel Churches v. England
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
  4. 4 Show/Hide More Preliminaries 2: Subject Matter Jurisdiction
    Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    1. 4.1 Show/Hide More Theory
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 4.1.1 Excerpts of Burt Neuborne, The Myth of Parity
      2. 4.1.2 Excerpts of William B. Rubenstein, The Myth of Superiority
      3. 4.1.3 "Constitutional Limits in Litigation” From Yeazell 7th edition.
    2. 4.2 Show/Hide More Introduction to Subject Matter Jurisdiction
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 4.2.1 Show/Hide More Constitution, Article III, §§ 1, 2
        Please read Art. III, §§ 1, 2
      2. 4.2.2 Introduction to Subject Matter Jurisdiction
    3. 4.3 Show/Hide More Diversity Jurisdiction
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 4.3.1 Show/Hide More The Statute and Theory
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.3.1.1 Show/Hide More 28 U.S.C. § 1332 (a), (c)
          Please read 28 U.S.C. § 1332 (a) and ©
        2. 4.3.1.2 Show/Hide More Strawbridge et al. v. Curtiss et al.
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
          This classic case is the origin of the “Complete Diversity” rule.
        3. 4.3.1.3 Show/Hide More Bank of United States v. Deveaux
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
          This classic case helps explains why the diversity-of-citizenship rule was put in place by the Framers.
      2. 4.3.2 Show/Hide More Amount in Controversy
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.3.2.1 Show/Hide More AFA Tours Inc. v. Whitchurch
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        2. 4.3.2.2 Show/Hide More Notes on Amount in Controversy
          **NOTE: We will talk about how AIC works for class actions at the end of the course.  
      3. 4.3.3 Show/Hide More Diversity of Parties
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.3.3.1 Show/Hide More Ochoa v. PV Holding Corporation
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        2. 4.3.3.2 Additional Notes on Diversity of Parties
      4. 4.3.4 Judicially Created Exceptions
    4. 4.4 Show/Hide More Federal Question
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 4.4.1 Show/Hide More The Theory and the Constitutional Grant
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.4.1.1 Introduction to Federal Question Jurisdiction
        2. 4.4.1.2 Show/Hide More Constitution, Article III, §§ 2
          Please re-read Art. III, §§ 2
        3. 4.4.1.3 Show/Hide More Osborn v. Bank of United States [NOTE DIRECTIONS]
          Original Creator: I. Glenn Cohen

          NOTE: This case is complicated. I have endeavored to edit it such that it most closely resembles contemporary English but in some instances that was not possible. Have patience when reading it and do not spend more than 20 minutes on it.

          SUMMARY OF FACTS: The Bank of the United States brought suit against the state auditor of Ohio (Osborn) in federal court seeking an injunction to stop Ohio from collecting a tax the Bank believed was unconstitutional. Historically, the States opposed the Bank of the United States and often levied punitive taxes against it. Even though the court granted the Bank a temporary injunction, the state auditor forcibly entered the bank and took the money he claimed state was owed. The court ordered the state officials to return the money, who in response argued that the federal courts had no subject matter jurisdiction.

      2. 4.4.2 Show/Hide More The Statutory Grant
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.4.2.1 Show/Hide More 28 U.S.C § 1331
          Please read 28 U.S.C. § 1331
      3. 4.4.3 Show/Hide More The Well-Pleaded Complaint Rule
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.4.3.1 Show/Hide More Louisville & Nashville R. Co. v. Mottley
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        2. 4.4.3.2 After Mottley: The Well-Pleaded Complaint Rule and Artful Pleading
        3. 4.4.3.3 Show/Hide More Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc. [OPTIONAL AS SUMMARIZED IN CHEAT SHEAT]
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        4. 4.4.3.4 Show/Hide More Skelly Oil Co. v. Phillips Petroleum Co. [OPTIONAL AS SUMMARIZED IN CHEAT SHEAT]
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        5. 4.4.3.5 Show/Hide More Bright v. Bechtel Petroleum Inc. [OPTIONAL AS SUMMARIZED IN CHEAT SHEAT]
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      4. 4.4.4 Show/Hide More The Meaning of "arising under"
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.4.4.1 Cohen Cheat Sheet on "Arising Under" Federal Question Subject Matter Jurisdiction
        2. 4.4.4.2 Show/Hide More Merrell Dow Pharmaceuticals Inc. v. Thompson [NOTE DIRECTIONS]
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
          Read this AFTER you've read the cheat sheet which will walk you through most of the case.
        3. 4.4.4.3 Show/Hide More Gunn v. Minton [NOTE DIRECTIONS]
          Original Creator: I. Glenn Cohen

          Summary/Edited Facts of Case:

          Vernon Minton developed a computer program (“TEXCEN”) for securities trading in the early 1990s. He leased it in 1995 to a securities brokerage. He applied to patent TEXCEN a little more than a year later, and the patent was issued in 2000.
          Minton then sued NASDAQ for patent infringement, represented by Mr. Gunn. NASDAQ obtained summary judgment on the grounds that the patent was invalid; an inventor is not entitled to a patent if “the invention was . . . on sale . . . more than one year prior to the date of the application,” and Minton had leased TEXCEN to Stark more than one year prior to filing his patent application. 35 U.S.C. § 102(b).
          Minton then filed a motion for reconsideration arguing for the first time that the lease agreement was part of ongoing testing of TEXCEN and therefore fell within the “experimental use” exception to the [one year rule]. The District Court denied the motion on the grounds that the experimental use argument was waived, Minton appealed, and the U.S. Court of Appeals for the Federal Circuit affirmed.

        4. 4.4.4.4 Show/Hide More Additional, OPTIONAL Cases [Read if interested]
          Original Creator: I. Glenn Cohen
          1. 4.4.4.4.1 Show/Hide More Moore v. Chesapeake & Ohio R. Co. [OPTIONAL]
            Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
            Summarized in cheat sheet. OPTIONAL if you want to read more of it.
          2. 4.4.4.4.2 Show/Hide More Smith v. Kansas City Title & Trust Co. [OPTIONAL]
            Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
            Summarized in cheat sheet. OPTIONAL if you want to read more of it.
          3. 4.4.4.4.3 Show/Hide More Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg. [OPTIONAL]
            Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
            This is summarized in the cheat sheet and in Gun v. Minton, so reading it is OPTIONAL if you want more.
          4. 4.4.4.4.4 Show/Hide More Empire Healthchoice Assurance, Inc. v. McVeigh [OPTIONAL]
            Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
            This is summarized in the cheat sheet and in Gunn v. Minton, so reading it is OPTIONAL if you want more.
    5. 4.5 Show/Hide More Supplemental Jurisdiction
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 4.5.1 Show/Hide More How We Got Here
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        1. 4.5.1.1 Show/Hide More United Mine Workers v. Gibbs
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        2. 4.5.1.2 Show/Hide More A Note on Pendent and Ancillary Jurisdiction Following Gibbs, from Friedenthal, Miller, et al (10th ed. 2012) [NOTE DIRECTIONS]
          Read these cases carefully since we will spend some time on them even though the squibs are short.
      2. 4.5.2 Show/Hide More The Current State of the Law
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        Note the directions for Jones and Shanaghan
        1. 4.5.2.1 28 USC § 1367 - Supplemental Jurisdiction
        2. 4.5.2.2 Show/Hide More Jones v. Ford Motor Credit Co. [NOTE COMMENT]
          Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
          This case will teach us a bit more about 1367(a),© and the CNOF test. It also reaches ahead to the idea of counterclaims that we will take up in the joinder unit of the course.
        3. 4.5.2.3 Show/Hide More OPTIONAL: T&O v. CNOF [OPTIONAL, READ ONLY IF YOU WANT TO]
          Original Creator: I. Glenn Cohen
          This is optional, advanced Civ Pro reading. We will not discuss it in class and it will not be on the exam.
          1. 4.5.2.3.1 Show/Hide More Shanaghan v. Cahill [NOTE DIRECTIONS; OPTIONAL]
            Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
            What happens when the federal basis for a case drops away, can you still continue to assert supplemental jurisdiction?
          2. 4.5.2.3.2 Show/Hide More Iglesias v. Mutual Life Ins. Co. of New York [OPTIONAL]
            Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
  5. 5 Show/Hide More Preliminaries 3: Personal Jurisdiction
    Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    1. 5.1 Introduction to Personal Jurisdiction Cheat Sheet
    2. 5.2 Show/Hide More Traditional Bases
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 5.2.1 Introduction to Pennoyer
      2. 5.2.2 Show/Hide More Pennoyer v. Neff [NOTE DIRECTIONS]
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
        Students, please read this one fairly quickly; much of it is covered in the cheat sheet and I will lecture you through it in class, do not spend more than 20 minutes on it
    3. 5.3 Show/Hide More The Modern Doctrine and the Constitutional Limits of Due Process
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 5.3.1 Pennoyer to International Shoe
      2. 5.3.2 Show/Hide More International Shoe Co. v. Washington
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    4. 5.4 Show/Hide More Introduction to Long Arm Statutes: State Long Arms
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 5.4.1 Introduction to Long-Arm Statutes
      2. 5.4.2 Show/Hide More Gray v. Amer. Radiator & Standard Sanitary Corp.
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
    5. 5.5 Show/Hide More Development of General In Personam Jurisdiction
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 5.5.1 Show/Hide More Goodyear Dunlop Tires Operations SA v. Brown
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      2. 5.5.2 Introduction to Long-Arm Statutes
    6. 5.6 Show/Hide More More on Specific in Personam Jurisdiction
      Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      1. 5.6.1 Show/Hide More McGee v. International Life Ins. Co.
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      2. 5.6.2 Show/Hide More Hanson v. Denckla
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      3. 5.6.3 Show/Hide More World-Wide Volkswagen Corp. v. Woodson
        Original Creator: I. Glenn Cohen Current Version: I. Glenn Cohen
      4. 5.6.4 More on Personal Jurisdiction: State Sovereignty and Plaintiff's "Minimum Contacts"?
      5. 5.6.5 Calder and the "Effects Test"
      6. 5.6.6 Walden v. Fiore
      7. 5.6.7 Show/Hide More