Civil Procedure Assignments & Notes

LAW 5301 (4 credits)
Professor Pedro A. Malavet

Quicklinks by Week

 

Week One: January 12-13

 Session

Topic/Pages 

Session 1-A
January 12

Course Syllabus

General Recommendations on how to use these notes and answers to "big" questions, such as: Are study aids the work of the devil?

Session 1-B
January 12

Chapter I. Choosing a System of Procedure, pp. 1-3
Handling a litigatory monster: Dupont Handout

Session 2-A
January 13

Chapter I: The Adversary System: Band's Refuse , 3-18

Session 2-B
January 13

Chapter I: Kothe v. Smith , 18-26

Week Two: January 20

Monday, January 19, is the Rev. Martin Luther King holiday and we will not meet on that date; additionally, I will NOT teach on Friday, January 23, which is a legislative Monday

 Session

Topic/Pages 

Session 3-A
January 20 

Chapter II: The Costs and Rewards of Litigation—Remedies and Related Issues

Prejudgment Seizure: Fuentes v. Shevin, US Const. Am. 14, 27-42

Session 3-B
January 20

Prejudgment Seizure: Mitchell v. WT Grant, North Georgia v. Di-Chem, 42-50

FRIDAY
January 23

Friday, January 23, is a "legislative Monday" to make up the sessions that would have been taught on the Reverend Martin Luther King Holiday. I will not teach on this date. I will make up these two hours with a review session at the end of the semester.

Week Three: January 26-27

 Session

Topic/Pages 

Session 4-A
January 26

Prejudgment Seizure: Conn. v. Doehr, 50-67

Session 4-B
January 26

Postjudgment Remedies: Damages, Carey v. Piphus, FRCP 65, 67-84

Session 5-A
January 27 

Postjudgment Remedies: Equity, Smith v. Western Electric, 84-98

Session 5-B
January 27

The Cost of Litigation: "Costs" & Attorneys Fees, Venegas v. Mitchell, FRCP 54, 28 USC § 1920, 98-108

Week Four: February 2-3

 Session

Topic/Pages 

Session 6-A
February 2 

Chapter III: Pleading

Introduction: Gillispie v. Goodyear, FRCP 1, 2, 8(a), 12(b), US Const. Am. 14, 121-131

Please note that my graphic on pleading is posted at the start of this notes file.
[Click Here]

Session 6-B
February 2

Specificity, US v. Bd. of Harbor Commissioners, consistency and honesty: McCormick v. Kopmann, FRCP 7(a), 8(a), 12(b), 12(c), 12(e), 12(f), 42, 131-142 (The cases are very short)

Session 7-A
February 3

Sanctions: FRCP 11, Zuk v EPPI, Note that Zuk v. Psychiatric Institute, is a new case, FRCP 11(a), 11(b) ("Safe Harbor"), 11(b)(3), 11(c), 54(d)(1), 143-156

Session 7-B
February 3
  1. Legal Sufficiency of Claims, Mitchell v. Archibald & Kendall, Inc., FRCP 12(b)(6), 12(b), final sentence, 15(a), 56, review Conley v. Gibson, FRCP 11, 8, 156-162

Week Five: February 9-10

 Session

Topic/Pages 

Session 8-A
February 9

Chapter III. Pleading Continued

Heightened Requirement of Specificity
Ross v. AH Robbins, FRCP 9(b)[1] & [2], 8(a), 8(a)(2), 163-173

The Overruling of Conley?,
Swierkiewicz v. Sorema, NA,
pages 177-181 (Skip the notes at pages 181-189, they are superseded by the notes following Bell Atlantic in the Appendix, starting at page 1217).

Session 8-B
February 9

The Overruling of Conley? continued: Bell Atlantic v. Twombly, now Appendix pages 1205-1224 replace pages 173-177 and the notes at pages 181-189 in the updated 4th edition.

SO WHAT?: Erickson (now discussed starting at page 1219)

[Click here to download the handout] (You are welcome to download the old handout, but please note that the new material is in the Appendix of the Updated Fourth Edition at pages 1205-1224).

Swierkiewicz, Bell Atlantic and Erickson are likely to require discussion during this session and the first hour of the Tuesday session.

Session 9-A
February 10

C. Defendant's Response:
1. Pre-Answer Motions,
Rule 12 Exercises, FRCP 7(a), 12(a), 12(b), 12(g), 12(h), 15(a), 189-191
(short reading assignment, but you must work through the exercises!!).

Session 9-B
February 10
  1. Exercises Continued.
    C. Defendant's Response:
    1. Pre-Answer Motions,
    Rule 12 Exercises, FRCP 7(a), 12(a), 12(b), 12(g), 12(h), 15(a), 189-191
    (short reading assignment, but you must work through the exercises!!).

Week Six: February 16-17

 Session

Topic/Pages 

Session 10-A
February 16 

Chapter III. Pleading Continued.

2. Failure to Answer: Default, Shepard Claims v. William Darrah & Associates, FRCP 4(e), 12(a)(1)(A), 55, 191-199

Session 10-B
February 16

3. The Answer: In General: David v. Crompton Knowles I, FRCP 8, 10(b), 11, 11(b)(4), Affirmative Defenses: Gomez v. Toledo, (Gómez has been reduced to notes), 199-207

A NEW NOTE: THE CURIOUS CASE OF QUALIFIED IMMUNITY

Session 11-A
February 17
  1. Counterclaims & Voluntary Dismissal [Focus mostly on Wigglesworth], 207-214

    Counterclaims:
    Wigglesworth v. Teamsters, FRCP 12(b), 13, 15(c)(2), 20, Voluntary Dismissal: DC Electronics v. Nartron (Nartron has been reduced to notes at p. 213).

    WE MAY START DAVID v. CROMPTON KNOWLES II during the first hour.

Session 11-B
February 17

E. Amendments to the Pleadings, 214-227:

    1. Permission to Amend, David v. Crompton Knowles II, FRCP 12(c), 15, 15(a), 15(c), 215

    2. Relation Back: Swartz v. Gold Dust Casino, FRCP 12(c), 56, 15, 15(c), 218

Week Seven: February 23-24

 Session

Topic/Pages 

Session 12-A
February 23

Chapter IV: Joinder of Claims and Party

Background Notes, 228-234, Parties: [You should skim this re-edited material, but I will focus on the Joinder readings in class].

1.        [Notes] Real Party in Interest:Virginia Electric v. Westinghouse, FRCP 17(a), 19, 228-230 [You should skim this material, but I will focus on the Joinder readings in class]
2.        Fictitious Names: SMU Association of Women Law Students v. Wynne and Jaffe, FRCP 10(a).

Focus: Joinder of Claims (Rule 18) and Parties (Rule 20), 234-242
Permissive Joinder of Claims, FRCP 18(a), Permissive Joinder of Parties, FRCP 20(a), Kedra v. City of Philadelphia, Insolia v. Phillip Morris, Inc., which supersedes Cohen.

Session 12-B
February 23

Compulsory Joinder of Parties, FRCP 19, Janney Montgomery Scott v. Sheppard Niles, 242-260

Session 13-A
February 24

Impleader, FRCP 14(a), Clark v. Associates Commercial, 260-265

Session 13-B
February 24

Counterclaims & Crossclaims, + Impleader exercises, FRCP 13, 13(a), 13(b), 13(g), 13(h), 14, 14(a), 18, 20, 265-267
EXERCISE DAY! Again, we will spend the entire class doing exercises, which means that you must look at the rules with great care.

Week Eight: March 2-3

 Session

Topic/Pages 

Session 14-A
March 2

V. Discovery

Discovery Generally: Policies and cost, In Re Convergent Technologies, FRCP 26, 332-342

Session 14-B
March 2

Discovery Devices, FRCP 26, 30, 31, 33, 34, 35, 36, 37, 45, 342-57
REMEMBER: THE QUESTION WILL BE HOW TO CONDUCT DISCOVERY USING SOME OF THE ALLEGATIONS IN JONES v. CLINTON.

[Click here to view the Jones v. Clinton complaint]

We will also discuss initial disclosure. The old materials have been superseded becauseRule 26(a) was amended in 2000 to make it kinder and gentler. Mandatory Disclosure, the old regime: Scheetz v. Bridgestone/Firestone, FRCP 26(a).

Session 15-A
March 3

Scope and Burden, Davis v. Ross, 357-361, Kozlowski v. Sears, FRCP 26(b), 357-368

Session 15-B
March 3

McPeek v. Ashcroft (NEW CASE), FRCP 26(b), 368-380

These are new materials on the discovery of electronic materials and other challenges of the age of technology.


MARCH 7-15: SPRING BREAK


Week Nine: March 16-17

 Session

Topic/Pages 

Session 16-A
March 16

Work-Product Doctrine: Hickman v. Taylor, 26(b)(1), 26(b)(3), 30(a), 30(c), 30(d)(1), 380-391

Session 16-B
March 16

Attorney-Client Privilege: UpJohn v. US, 391-401

Session 17-A
March 17 

Experts: In Re Shell Oil Refinery, FRCP 26(b)(4), 26(d), 26(e)(1), 26(f), 26(g)(1), 37(c)(1), 401-412

Session 17-B
March 17 

Fact-Gathering Without Judicial Assistance, Corley v. Rosewood, 412-414 [Lecture only, we will spend most of our time on sanctions].

Sanctions: Cine Forty-Second Street v. Allied Artists Pictures, FRCP 26(a), 26(b), 26(c), 37(a), 37(c), 37(d), 415-423.

Week Ten: March 23-24

 Session

Topic/Pages 

Session 18-A
March 23

VI. Summary Judgment

Moving for Summary Judgment, FRCP 56
Adickes v. SH Kress & Co. , 424-435

Session 18-B
March 23
  1. Moving for Summar Judgment, continued
    Celotex v. Catrett
    , 435-449

Session 19-A
March 24
  1. Opposing Summary Judgment:
    Burden of Production: Arnstein v. Porter, 449-452, Notes at 455-464

Session 19-B
March 24
  1. Opposing Summary Judgment:
    Burden of Production: Dyer v. MacDougall, 452-455, Notes at 455-464

    Chapter VIII. Trial Phases, 521-529
    [I will lecture on trial phases; I want to use this material to further explain the concepts of Burdern of Persuasion and Burden of Production. If you have questions, this will be the time to address them].

Week Eleven: March 30-31

 Session

Topic/Pages 

Session 20-A
March 30

IX. Geographical Location

  1. Personal Jurisdiction:
    (a) History, p. 690
    (b) Minimum contacts,
    International Shoe, 710-717
    (c) Problems, Note 3 at pages 716-717

    Pay particular attention to the problems in note 3 at pages 716-717

Session 20-B
March 30
  1. Personal Jurisdiction:
    (a) Contract(s) or contact(s)?
    McGee v. Int'l Life, 717-723
    (b) Long-Arm Statutes, Gray v. American Standard, 723-727
    (Gray has been reduced to multiple notes. Please identify important terms and phrases, such as "stream of commerce" and "effects test")
    (c) Personal Jurisdiction in Federal Court, FRCP 4, 727-729

Session 21-A
March 31
  1. Personal Jurisdiction: Refining Minimum Contacts, Worldwide Volkswagen, 729-752
    [I will lecture on Calder, Hustler]

Session 21-B
March 31
  1. Personal Jurisdiction: Burger King , 752-765

    Contract(s) of contact(s) once again.
    Is BK a contract case or a standard minimum contacts situation?

    DISTINGUISH: Choice of LAW vs. Choice of FORUM Clauses,
    Burger King (Choice of Law) vs. Carnival Cruise Lines (Choice of Forum)

Week Twelve: April 6-7

 Session

Topic/Pages 

Session 22-A
April 6

IX. Geographical Location, cont.

  1. Personal Jurisdiction: Asahi , 765-776

Session 22-B
April 6
Session 23-A
April 7
  1. Personal Service Within the Jurisdiction: Burnham v. Superior Court , 809-821

Session 23-B
April 7
  1. Venue: Bates v. C & S Adjusters, 28 USC § 1391, 840-847

Week Thirteen: April 13-14

 Session

Topic/Pages 

Session 24-A
April 13

X. State vs. Federal Subject-Matter Jurisdiction

  1. Diversity Jurisdiction: Mas v. Perry, 28 USC § 1332, US Const. Art. III, § 2, Cl. 1, 860-871

Session 24-B
April 13
  1. Federal Question Jurisdiction: Louisville & Nashville RR v. Mottley, 28 USC §1331, 871-877

Session 25-A
April 14

Supplemental Jurisdiction, 28 USC § 1367, Exxon Mobil Corp. v. Allapattah Services Inc., 545 U.S. 546 (S.Ct. 2005), 890-892, Appendix pp. 1224-1243.

The casebook materials at pages 892-911 have been superseded by a new case which is in the Appendix.

[Click here for Updated Notes]

[Click here for the old handout (now superseded by the Appendix]

OLD MATERIALS for Reference only: Owen Equipment & Erection Co. v. Kroger, Finley v. U.S., 28 USC § 1367, Palmer v. Hospital Authority, 889-904.

Session 25-B
Will be covered in the review session
I will cover the problems from last year at the review session

Joinder and Jurisdiction Problems

Problems Handout for 2008

Answers to the Problems Handout for 2007

  • I have not changed the facts of the 2007 problem in the 2008 handout other than to account for the 2007 Practical Project, which I did not assign this year. Please note that the last problems handout that I had designed in 2004 predated the 2005 decision in Exxon Mobil, which gives us new guidance on the proper reading of 1367(b). In 2007, I also added a note about the growing consensus about how the 1988 language at the end of 1332(a), referring to resident aliens, should be read.

    Additionally, here is a link to how I have done before. The old notes will provide a lot of useful information for our discussion.

    Please pay special attention to sections 1331, 1332, 1367 and 1391 in Title 28, and to FRCP 13, 14, 18 & 20.

  • Week Fourteen: April 20-21

     Session

    Topic/Pages 

    Session 26-A
    April 20

    XI. Choice of Law in Federal Courts: The Necessary Evil that is Procedure

    1. Swift v. Tyson, Erie RR v. Tompkins, 919-930

    Session 26-B
    April 20
    1. Hanna v. Plummer , 949-965

      By way of background, you should skim the notes for: Guarantee Trust , 930-943, and Byrd v. Blue Ridge , 943-949

    Session 27-A
    April 21
    1. For this session, I will go over Asahi, Burham, and over the Subject-Matter jurisdiction problems as a way to review Mas, Mottley and Exxon Mobil.

      I will not cover the rest of the Erie doctrine cases, although I will lecture about them on April 20th.

      Professor Mashburn has given me the text of her slides for Subject-Matter Jurisdiction. [Click Here]

      Joinder and Jurisdiction Problems

      Problems Handout for 2008

      Answers to the Problems Handout for 2007

      Burlington Northern v. Woods & Walker v. ARMCO , 965-975

    Session 27-B
    April 21
    1. Gasperini v. Center for Humanities, Inc., 975-991
      Just when we thought Erie was not that important the Supremes surprise us ...

    Session 28
    April 23
    2:15 to 5:00 p.m.

    Review Session, probably on Thursday, April 23, in Room 180


    You will find old exams and feedback memos for all of them posted to the web site. You will also find a general guide to exam-taking posted in the "Student Resources" page of the web site.

    Please take note that changes in statutory interpretation by the Supreme Court may have changed the answers to certain old exam questions. For example, and most notably, Exxon Mobil changes how we treat parties joined under Rule 20 for purposes of computing the jurisdictional amount by combining 1332 and 1367 subject matter jurisdiction.

    EXAM

    Tuesday, March 28
    8:30 a.m.-12:30 p.m.

    EXAM, please check with the Office of Student Affairs for updated information on your examination.