Civ Pro - General

8/8/2019 Civ Pro - General

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I. Federal Subject Matter Jurisdiction

• Article III “arising under”Article III of the Constitution is devoted to the judiciary

judiciary article, confers authority on congress to revoke any of these juris???

-Sec. 1 authorizes but does not require, Congress to establish lower federal courts(court of appeals and district cts.)-Sec. 2 limits fed. courts jurisdiction to the list in 2

Since federal courts are courts of limited jurisdiction, every case brought into fed. courtmust handle 2 questions

1) Does the case fall into one of the enumerated categories of article III Sec. 2i. Matters arising out of federal lawii. Cases affecting ambassadorsiii. Maritime casesiv. Diversity

2) Has Congress further authorized the lower fed. courts to assume that jurisdiction

§ 1331 Federal Question(In order to get into fed ct one must prove that the case arises under federal law)

• District cts have original juris of all civil actions arising under the Constitution,laws or treatises of the United States

§1332 Diversity of Citizenship; Amount in controversy; Costs(a) District cts have original jurisdiction of all civil actions where the matter in

controversy exceed $75,000 between*good faith test-∏ must show that???

1) citizens of different states

2) citizens of state, and citizens and subjects of a foreign state;3) citizens of diff states and in which citizens or subjects of a foreign state areadditional parties; and

4) a foreign state*Aliens are treated as citizens of the state of domicile*A corporation is a resident of the state where it is incorporated(b) lower than 75,000???(c) discerning the state of a corp is fairly easy/ but determining its principle place of business is harder

EX) A vast national corp. its citizenship may be tested by most of revenue/ OR nerve center (corporate mngmt in one place)-automatically principle place of business§1333 Admiralty, Maritime and Prize Cases

• The district ct shall have original juris, exclusive of the cts of the states, of:1) Any civil case of admiralty or maritime juris,2) Any prize brought into the United States and all proceeding for the condemnation

of property taken as prizeForm 2 Allegation of Jurisdiction (must be made in first paragraph of a federal claim)Louisville v. Nashville R.R. v. Mottley: life time passes no longer recognized by RR after act passed by Congress)

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i. The Mottleys had sued under a breach of K which is a state cause of actionwhich does NOT arise under federal law

ii. Under “well pleaded complaint rule” the ct decides whether the case “arisesunder federal law” for purposes of § 1331

-this rule allows the ct to determine at the outset whether it has

jurisdiction, w/o having to wait for the ∆’s answer RULE: if you want to bring a case in federal ct you MUST show that claim arose under federal law

DIVERSITY JURISDICTION§ 1653 ct will allow plea to be amended as long as there is SMJ

-Form 2: Allegation of Jurisdiction-includes requirement for $75,000,

Conditional remitator/ additor??-see § 1332 (b): ∏ can keep claim that is less than 75,000 but won’t

necessarily cover costs, some judges may require ∏ pay ∆’s costs

Redner v. Sanders: ∏ is living in France w/ US citizenship, does not sufficiently

demonstrate CA domicile dismissed for lack of SMJ

• No juris since he failed to state whether he was an alien or a citizen, and also didnot even request to amend his complaint

• To claim domicile, there are 2 requirements:i. physically move there ANDii. intent to remain

Saadeh v. Farouki: ∏ citizen of Greece, brought suit invoking diversity juristhere wasno diversity juris

RULE: statute can’t convert ∏ into a citizen, therefore no jurisEX) ∏ is NY ctzn, ∆ is Jordan ctzn and DE residentthere would be juris

∏ is NY ctzn, ∆ is Jordan ctzn and NY resident no juris

II. SUPPLEMENTAL (ANICILLIARY) JURISDICTION

-When claim arises under federal and state law, ∏ can bring claim in either court§ 1367 As long as US district ct has original jurisdiction of a claim, the ct shall havesupplemental juris over all other claims that are so related to claims in the action…

-devised to ease jurisdictional path of parties in case

A. Pendent Jurisdiction (helps ∏)• Permits a federal ct to entertain a state claim of which it would otherwise

lack SMJ when it is joined w/ a related federal claim (relatedness makesthem part of the same constitutional case)

EX) Gibbs case: labor dispute/ state claim interposed with federal claim

• Mainly associated w/ federal question jurisB. Ancillary Jurisdiction (helps ∆)

• Mainly associated w/ the diversity jurisdiction

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-Rule 13(a) Compulsory Counterclaims: when ∏’s claim arises out of same transaction/related

-Rule 13(b) Permissive Counterclaims: a pleading may state claims thatare not related/unrelated

EX) If defendant impleads x and x has a cross-claim against defendant

which is worth less than $75,000 the court still has jurisdictionover the claim because of ancillary jurisdiction. But the claim must berelated to the claim brought by plaintiff. If x=s cross-claim

against defendant is permissive there is no ancillary jurisdiction.

-Rule 13(g) Cross Claim: supplemental jurisdiction also applicable tosupport cross-claims

Permits a Claim between ∆s/ a device they will use to seek contribution other EX) ∏ (CA) sues ∆1 and ∆2 of (Illinois) in a diversity case/ If ∆1

wants to cross-claim against ∆2, ancillary juris permits the federal ct to

entertain the cross-claim even if there is no diversity between the ∆s

§ 1367- When does the court have Supplemental Jurisdiction?a. State claims must be related to federal claims. b. Diversity jurisdiction only for ∆s entered on the claim.c. District ct can deny supplemental jurisdiction if

i. Claim raises a novel or complex issue of state law;ii. The claim substantially predominates over the claim or

claims over which the district court has originalaction;

iii. The district court dismissed all claims over which it has

original jurisdiction; or iv. In exceptional circumstances, there are other compellingreasons for declining jurisdiction.

d. The period of limitations for any claim asserted under subsection(a), and for any other claim in the same action that is voluntarily

dismissed at the same time as or after the dismissal of theclaim under subsection (a), shall be tolled while the claim is pendingand for a period of 30 days after it is dismissed unless Statelaw provides for a longer tolling period.PARTIES

- Parties who are joined in litigation must be real parties of interest

- General rule is to join them all, as long as claim arises out of general transaction

Rule 14 (Impleader):• Permits ∆ to implead 3rd party (an indeminitor) one who would have to

hold the ∆ harmless for all or part of the ∏’s demand against the ∆EX) ∏ sues ∆, ∆ impleads X

• (b) excludes the claim ∏ may try to assert directly against XRule 19-addresses which persons should be made parties in the action

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(a) requires investigation of alternatives when the joinder of the person inquestion is impeded by a want of either juris

Interpleader: when someone faces possible multiple liability from conflicting claimants:-Stakeholder (person caught in middle) can bring all claimants into ct-produces a binding judgment on all claimants

-under res judicata, protects the stakeholder from further suit§ 1983 (fed civil rights statute)

III. Federal Removal Jurisdiction (from state to fed ct)-Unusual situation where ∆ has ultimate choice of forum (fed juris protects both partiesand both ∏ and ∆ should have access to it)-Available where ∏ had choice to bring suit in fed ct-For removal purposes, Subject Matter Juris applies-is designed to recognize possible local prejudices of state judges-when not based on diversity-removal is irrespective-all must concur

§ 1441 Actions Removable Generally(a) only authorizes removal of state court actions “of which the district cts of the UnitedStates have original juris”EX) Under concurrent juris ∏ opted for state court, ∆ can remove to fed court

If federal ct, was not an option to the P initially, then D cannot remove it

EX) P (NY) D A (del) and D B (NY) cannot be removedno subject matter jurisSome cases are not removable even though the P could have brought them in federalcourt originally

(a) claims deemed supplemental-whole claim is removable1441 (b)* precludes removal when suit is brought in ∆’s stateWhy? D has no need to be protected from local prejudice, since he is from the forum state

* BUT if it is a fed q/ fed ct can hear it (for diversity cases, all ∆smust be diverse, if one ∆ is not diverse the case is not removable)§ 1441 (c ) if any claim would be removable alone, ∆ can remove it and whole case isremoved

1441 (e) provides that the federal ct is not precluded from hearing the case simply b/c the state court lacked juris over it*CASE STILL MUST BE IN FEDERAL JURIS TO BE REMOVABLE

1) You can’t remove to another state ct or to a state ct in a diff state2) You can’t remove to a federal court in another state or even in another district in

the same state

3) Only fed district ct can house removed action

Things done in state ct before removal are validEX) motion pending for injunction, which didn’t come to hearing before case was

removed state ct loses juris§ 1446 Procedure for Removal:-no permission of courts required

Notice of Removal Pursuant to Rule 11;

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§ 1446 (b) ∆’s removal notice must be filed w/in 30 days of ∏’s pleading in state ct-if it is diversity, ∆ has 1 year

§ 1446 (d) prompt written notices to all parties…(and ct clerk)§ 1447 Procedure after RemovalOnce case is removed, ∏ can move to remand:

§ 1447 (c) remand motion must be made w/in 30 days or it’s waived*ct can move to remand case after 30 days (SMJ)???§ 1447 (d) order remanding case is not appealable in cases that are not civil rightsRule 12 (h) Subject matter Juris is not waivableRule 81 (c) case proceeds as if it had been commenced in fed ct*When a case w/ an outstanding TRO (injunction) is removed, the TRO now becomessubject to time limiting provision-Rule 65

IV. Personal Jurisdiction (whether ∏ can sue in a distant state)-Cts power over individual that binds that individual the a ct’s judgment-If PJ is not raised before other motions it is waived and can’t be brought up later

-∏ submits to PJ by commencing an action

DUE PROCESS requires:1) notice and2) opportunity to be heard3) jurisdictional basis (thread, nexus)

i. local service is its own basis for juris

i. Rem juris (only turned to when PJ is lacking)a. Pennoyer v. Neff (landmark case): Quasi in Rem??

ct held that ∏’s are not free to bring suit wherever they choose

• Appropriate limits on the places where ∆ can be required to defend a lawsuit 14th

amendment DUE PROCESS

• Today, personal delivery of the summons to ∆ w/in the state, no matter howtransient the ∆’s presence, will still give PJ

RULE: If you don’t serve ∆ personally w/in borders you can’t get personal juris, BUT if you do you can get juris, regardless of where claim arose

Quasi (limited juris): extent of the attached property-you can have an attachment if thenondomiciliary D can’t be served in state but that property is seized in state in advance of commencement of the action the ct will get a limited juris

14th amendment: state can’t deprive individual of life, liberty or property w/o due process

b. Burnham v. Supreme Court: ∆ served in CA, when visiting for business and

vacation has reaffirmed that such “transient jurisdiction is permissible, even if ∆ isonly in state briefly (doesn’t violate due process)

• Service on a nonresident individual w/in the state even on a claim unrelated to thestate thus continues to give full personam juris

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RULE: Juris based on physical presence comports w/ due process, regardless of ∆’scontact w/ forum state

-conveniens doctrine/ forum non conveniens: every state entitled to inconvenientforum???

Diplomatic immunity: diplomatically immune from services (ambassadors and family)Testimonial immunity (criminal context): can testify w/o concern for incriminationCivil context: designed to recognize the premise wishing to come into NYvoluntarily and assist in proceedings-granting immunity from service of process(rsble time in and out) cannot be served w/ civil process while in state

If it can be shown that P could have served summons anywhere, then P did not have toserve in state, then there is no purpose of immunity Enticement doctrine: if D is not subject to state’s juris, will not encourage fraudulent

conduct in ∏ enticing ∆ no juris will resultSERVICERule 4: “Summons”-governs the summons

4 (a): Form of Summons and its contents4 (b): issuance of summons4 (d): ∏ may seek waiver of service from ∆/ Dec. 1, 1993 amendment4 (e-j): Methods of Service

-any kind of service state recognizes (ie. “nail and mail” for NY state)4 (m): governs the time w/in which service must be made following the filing of the

complaint 120 days- App to extend time can be made ex parte and ct will invent a method, if good

cause was shown/ Ex parte: one sided (w/o notice to the other side)GeographyRule 4 1(k): authorizing extraterritorial jurisdiction

Rule 4 1 (D) can be served anywhere at all

*FED-complaint is commenced when filed*NY-summons & complaint must be filed

Hague Convention: service must satisfy what is stipulated by the foreign country

Specific in personam juris: juris over claims arising out of that single actMcGee

Specific juris: juris over claims arising out of a continuous actBurger KingGeneral in personam juris: contacts are so substantial that ∆ can be sued for anything in

that state-even claims unrelated to its in-state activities Shoe

USE HANDOUT FROM REVIEW SESSION TO FILL INIn many cases, when ∆ is not from forum state, the only basis for exercising PJ will bethe minimum contacts test developed in International Shoe:Minimum Contactss (applies to corps and individuals)

• Only basis for exercising PJ over ∆ when ∆ is not from the forum state (statewhere suit is brought)

• Longarm-involves a claim arising out of the ∆’s activity w/in the state

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V. Long Arm Jurisdiction

EX) If D subject to NY juris in Missouric b/c claim arose in NY then there is long arm juris

International Shoe v. Washington: Had no offices or manufacturing plants in WA but

employed salesmen there• Developed minimum contacts test

ct held minimum contact of a quality and nature such that maintenance of an actiondoes not offend “traditional notions of fair play and substantial justice?”

i. cts of a state exercise PJ over a ∆ if there are minimum contacts w/ the statethat it would be fair to require her to return and defend a lawsuit in that state

ii. juris is permissible depending on quality and nature of contacts w/ state

• single contact may do, but casual or contacts don’t pass minimum contactsdon’t pass minimum contact test

• Reasoning: a corp. that chooses to conduct activities w/in a state accepts areciprocal duty to answer for its in-state activities in the local cts (∆ who

deliberately chooses to take advantage of the “benefits and problems of the laws” shouldn’t be surprised when held accountable for acts in state

• Minimum contacts juris is limited to claims arising from (or related to) the∆’s contacts w/ forum state

-contacts that spawned lawsuit that are crucial to minimumcontacts analysis

McGee v. Int’l Life Insurance: life insurance premiums paid by mail from CA home toco.’s office in TX (no office in CA)

• State may exercise juris over a ∆ whose contact w/ state consist of only a singleact

Hanson v. Denckla: Family fight over assets of decedent, who established a trust in Del

and moved to Florida where she died“∆ must have purposely availed itself of the privilege of conducting activities w/in theforum state, thus invoking the protections of its laws”

-∆ must have made some deliberate choice in relating to state before can be madeto bear the burden thereStream of Commerce cases (when ∆’s goods reaches the forum state): Asahi and VWWW Volkswagen v. Woodson: purchased Audi in NY, accident in OK ???

• In order to be subject to a state’s jurisdiction, a ∆ must have chosen to have somecontact with that state; consideration of fairness, convenience, and the interests of the state in overseeing the litigation are otherwise irrelevant

Asahi v. Superior Court: motorcycle accident, defective tire/ cross-claims Asahi

• ∏ must do more than just put products into stream of commerce w/ theexpectation that it will reach the forum state…that is enough for minimum contact but once minimum contact has been met the fairness requirement must also bemet

Burger King: ∆ had BK franchise in FL and defaulted on payments, claim insufficient juris in FL

• Once it has been established that the ∆ has minimum contact w/ state, ∆ must prove that defending a suit would be unfair/ unrsble

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• After minimum contacts have been met, determine unrsbleness: burden on ∆,interests of forum state, ∏’s interest in obtaining relief, judicial economy

Pavlovich v. Superior Ct: ∏’s decryption website, may have harmed CA

• ∏’s knowledge alone is insufficient/ Finding juris under this instance wouldeffectively subject all intentional tortfeasors whose conduct may harm industries

in CA

VI. Notice Requirements

-Each state decides procedure-free to determine what it wants to require, as long as the method chosen satisfies

due process on the facts of particular case-If service can’t be made by personal delivery and can’t affix summons, ∏ is allowed to

make a motion to ct ex parte invent a method of service for ∏-only guideline is that it is rsbly calculated

Mullane v. Central Hanover Bank: bank noticed beneficiaries by publication

• Notice by publication fails to comply w/ due process, where the names and

addresses of the parties are known BUT for the addresses that were not known,notice by publication would suffice

VII. Rem Jurisdiction

-Implies the ct’s power over a thing/ In Rem: “Juris over the thing”-Still available but rarely invoked due to Long Arm jurisThree types of in rem jurisdiction

A. Strictly in rem - property is subject of litigation1. Is an action brought against the property itself.2. Action binds everything in the world.3. i.e., If a vessel is seized everything with an interest

in the vessel is barred from bringing claim againstit. (prominent in admiralty cases)

B. In rem - property is subject of litigation (more common)4. Only people bound are those specifically named in

action. (Ie. mortgage, lien on realty)C. Quasi in rem - ∏ is seeking general $ jdgmt ag. ∆

property is not subject of litigation but is the sole basis for the state having personal jurisdiction over ∆

Schaffer v. Heitner: shares purchased in Greyhound a DE corp./ reduced use of quasi inrem??

• Imposed a set of “contacts” or “nexus” requirements akin to the “minimumcontacts” required by Shoe for PJ (Minimum contacts must exist for rem juris toattach)

VIII. Venue and Transfer

-prescribes district action may be brought in-presupposes both PJ and SMJ-any district is proper venue in actions ag aliens

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-A defective venue does not result in dismissal for lack of juris The remedy is atransfer of the action from the right to the wrong

-jdgmt valid even though rendered in improper venue-Venue can be waived:

-by making a motion to dismiss on some other ground OR

-if no motion is made, failure to include venue objection in original answer § 1391 Venue(a) governs diversity cases(b) all others(c) Proper venue of corp is where you get PJ on the corp*(d) alien can be sued in any district(1) district where ∆ resides(2) district where a substantial part of the events giving rise to claim occurred

WHEN IS VENUE PROPER?1) a judicial district in which any ∆ resides [corp., any district in which subject to PJ];

human resides in state of domicile, if all ∆s reside in same stateOR 2) a judicial district in which a substantial part of the events or omissions giving rise toclaim occurred, or a substantial part of the property that is the subject matter of the actionis situated.ONLY IF neither of the standards above can be met should you resort to § 1391 (a)3 or (b)(3)

-determine the basis for SMJ-If SMJ is based only on diversity of ctznshp, refer to § 1391 (a)(3):

-a district in which any ∆ is subject to PJ when the action iscommenced

-If SMJ is not based solely on diversity of ctznshp (i.e., fed q or fed q plusdiversity), refer to § 1391 (b)(3):-a district in which any ∆ may be found

*Remember § 1391 (d)TRANSFER:§ 1404 (a) TRANSFER If ∆ wouldn’t have been amenable to PJ and wasn’t proper venue then not transferableunder 1404 (a)-From one venue to another, if the first was a wrong venue then 1404 a wouldn’t apply but 1406 would§ 1406 (a) WRONG VENUE

-venue has been initially set in an improper district-1404(a) can be dismissed on grounds of forum non conveniens

IX. Forum Non Conveniens-designed to protect local cts from being imposed on by a case which should be broughtelsewhere-In NY forum non conveniens dismisses the action; in fed it merely transfers action toanother district

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-becomes relevant in cases entirely between nonresidents-Under Erie, the transferee ct must refer to law of state in which action was commenced-Fed ct not bound by state decision when fed state can hear but state won’t due to forumnon conveniens???*Factors in applying conveniens doctrine (from Gulf case):

i. Ease of access to sources of proof-where evidence isii. Availability of compulsory process for attendance of unwilling witnesses-subpoenas/ transcripts of testimonies

iii. Possibility of view of premisesiv. Easy, expeditious and inexpensivev. Enforceability of jdgmt

§ 1404 (a) TRANSFER:-transfer of action to the more convenient federal district, crossing state lines andeven a continent-in federal cts only-§ 1404(a) can give rise to a conveniens dismissal

§ 1404 (a) requires (both conditions must be met):1) the district would be a proper venue for the action2) ∆ would be amenable to PJ there

§ 1404(a) Can result in dismissal or transfer of case. If case is dismissed, then the statuteof limitations keeps tolling. If the case is transferred, then the statute of limitations hasno effect on the case.Piper Aircraft v. Reyno: Scottish case, got juris over airline due to PA contacts

• There can still be a conveniens dismissal of a fed action, rather than a meretransfer, as where the more appropriate forum is ct in foreign country

*Even if, law there is less favorable to ∏ (Scotland)EX) Arizona and CA

Diversity Action brought in AZ, ∏/ statute of limitations alive in AZ but dead inCA/ ∆ seeks transfer from AZ to CAIn a transfer case, which state law must ct apply, its own or must the ct apply the law of where it was commenced, AZAnswered in Van Duzen v. barren:

In a transfer under 1404(a) the law goes w/ the case, if any Erie issue is raisedafter the transfer, it would just be a change of ct rooms not a change of law

Carnival Cruise Lines v. Shute: multi-destination cruise, clause on tkt ordered allclaims must be tried in FL

• Rsble forum selection clauses are effective in imposing juris (limit where

Carnival can be required to defend)

X. Joinder of Claims

• A ∏ may join in a single action as many claims as the ∏ has against the ∆,whether claims are related or not

-Severance: ct can have each claim tried to same jury, consecutively but separately(enables claims to remain in one action)/ diff. index #s

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-Separate trial: one claim tried before other/ there can still be one claim and one cause of action but will be appropriate for sep trial, avoids confusion

EX) Personal Injury: liability tried first, then damagesRule 18(a)?? Rule 20(a)

-In NY all claims permissible, whether related or notAre there more NY differences??

XI. Statute of Limitations-enacted to protect ∆s from having to defend claims after a rsble pd of time has elapsed-Diff pds???

-Warranty 4 yrs-Product liability 3 yrs-Personal injury 3 yrs

Interpose the claim: commence the action during proper pd, in fed practice it is the filingCollateral estoppel -allowed when larger claim is brought firs and it is apparent ∆ put

forth maximum effort*Ct can’t extend SOL§ 1658 TIME LIMITATIONS ON CIVIL ACTIONS

-After Dec. 1, 19990 enactment-In diversity cases, statute of limitations governed by state law

TOLLING PROVISION-several statutes that recognize when there should be anextension of the statute of limitations

1) ∏’s death or ∆’s death2) ∏’s infancy-claim doesn’t start to run until ∏ comes of age3) If ∏ is incompetent4) Military service

LACHES: waiting too long and ∆ damaged by delay-in cts of equity for specific performance-not tried by jury, but ct

XII. Erie Doctrine§ 1652 RULES OF DECISIONS ACT: if suing on fed cause of action the constitution or statute of congress governs-When fed juris is based on a fed cause of action (“arising under” juris), fed governs casesubstantivelyErie RR v. Tompkins: hit by object on train in PA, brought suit in NY-overrules Swift v. Tompkins

-only applies to substantive issues

• There is NO “general” fed common lawRULE: In diversity cases, the federal courts must apply state judge-made law on anysubstantive issue.2 goals of Erie:

i. provide uniformityii. avoid forum-shopping

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Lex Loci Delictus: apply the law of the place of the injuryLIMITS ON STATE POWER Guaranty Trust v. York : ∏s argue SOL did not bar suit, ∆s claim SOL is in equity*Statute of limitations characterized as substantive in Guranty v. Trust

State law for SOL

-substantive v. procedural characterization too simplistic…see Hanna v. Plumer • “outcome determinative test”: that if it can be shown that the outcome of the case

would change if fed rather than state law were applied to the issue at hand, thenErie governs to require that the state law be used

Byrd v. Blue Ridge Electric Corp: worker’s comp suit in fed ct, state law required no jury

• The right to a jury trial in federal court is a fundamental and essential right provided for in the Seventh Amendment and that may not be changed by any statelaw or requirements.

• The Erie Doctrine only applies if there are no fundamental and essential federalrights that conflict with the state right. The federal right may come from an act of

Congress or the Constitution.Hanna v. Plumer: state had “delivery in hand” statute, but delivery was made to wife pursuant to Rule 4-here, outcome determinative test shown can’t be ultimate test

• The Erie doctrine does apply to the Federal Rules of Civil Procedure regardingservice of process if the twin aims if:

i. Discouragement of forum shoppingii. Avoidance of inequitable administration of the laws are not

involved

• The Supreme Court ultimately held that the matter arose under the Federal Rulesof Civil Procedure and is thus procedural.

*THIS CASE built an impermeable rule around Rules of Civil Procedure and labelinganything contained in them strictly procedural and thereby must be followedSemtek v. Lockheed Martin Corp:??? is dismissing a diversity action on statute-of-limitations grounds determined by the law of the State in which the fed court sits

• Federal common law governed the effect of the dismissal by the federal courtsitting in diversity, and such law required that the claim-preclusive effect of thefederal judgment was governed by the law of claim preclusion of the federalcourt's forum state.

XIII. Pleadings and Remedies

-Pleadings began to diminish in respect to discovery

Double recovery test best way to ask if ∏ has one cause of action or severalA reply is required when in response to a counter-claim in the answer Rule 7A-forms of motionWhen a ∏ conceded every action of the complaint is called a demurrer Form 6-Complaint for $ LentForm 9-Complaint for NegligenceRule 8(a) wants “a short and plain statement of the claim showing that the pleader isentitled to relief”

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PUNITIVE DAMAGES-Very rare in NY, southern states more generous-Due process clause of 14th amendment gives Supreme ct power to interfere w/ a state’saward of punitive damagesState Farm Auto Insur. v. Campbell: insured found liable for multi-car accident

•

If punitive damages are more than one time more than compensatory damages, itcannot be tolerated, since it violates due process 14th amendment

-the wealth of a ∆ can’t justify an unconstitutional punitive damage award

XIV. History of Common Law

§ 2201 Creation of Remedy???COURTS:1. King’s bench (evolved from criminal ct): maintain king’s bench2. Ct of Exchequer-collected the king’s taxes3. Ct of common pleas-civil claims (property, theft of other’s land)

-became ct of common pleas—trials of civil claims

4. Ct of Chancery (equity): applied to for specific relief -equitable relief not entitled to trial by jury-EX) An injunction is an equitable relief; requires ∆ to do (mandatory injunction-

requires ∆ to do) or not to do-must show no other remedy of law

-Equitable defense: defense of laches-copias res a den dum: sheriff seizing ∆ and bringing him into courtWRITS:

i. Quare clausum fregit-writ of trespass: would result of an assessment of $damages wouldii. writ of ejectment: put ∆ off of ∏’s land

iii. writ of de bonis as pe tatis (conversion) sued person for $ damages for the value of property stoleniv. writ of replevin: returns the actual property to ∏v. writ of vi et armus: assault (one of the earliest)vi. writ of assumpsit: breach of K

-TRO is temporary injunction the court orders to establish if the injunction is necessary,as seen in Sigma case:Sigma v. Harris: former employee enjoined from working w/ competitor RULE: To obtain injunction you must show that you will suffer irreparable injuryRsbleness has three components

1) covenant must be necessary to protect employer’s interest2) covenant must be rsble in terms of temporal scope3) must be rsble in terms of geographic scope

Declaratory jdgmt: merely a declaration of the court to see which one has the better right/is the same as any other kind of action there is a dispute btn parties and the ct figures outwho has the better right

-Same as any kind EXCEPT in form of relief / ∏ not looking for coercive relief

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-Usually brought along w/ some other remedy-especially useful in personal injury actions

∏ involved in action w/ ∆, ∏ serves complaint and ∆ sees if insurance covers theclaim first

Insurance co. disclaims if prompt notice wasn’t given

•

NY precludes the impleader of the insurer so he seeks to overturn thedisclaimer

• If insurer prevails the disclaimer will be rejected and insurer must defend

• Insurer can bring declaratory action ag insured to see if disclaim is valid,the injured and also the insured can as well

Matrimonial realm is frequently used in declaratory actionEX) H abandons W and gets an ex parte divorce/W wants to clearly establish thatshe is still the wife/ H argues divorce is valid-Use declaratory jdgmt each can bring an action for declaratory jdgmt-declaratory action seeks relief to implement a right-SJ action to go to jdgmt quickly

Can bring SJ in a declaratory action-Is there a trial by jury in a declaratory action?

One must ask, does it involve law or chancellery cts, it didn’t arrive until 20th centand it can’t be traced so therefore the one it most nearly analogizes is the ct thatdetermines if jury or notThe resulting judgment is enforceable by some coercive action

EX) Execution: paper w/ instructions to seize and sell as much of ∆’s propertythat is enough to sell and reward ∏ $ damages

XV. Provisional Remedies (designed to help ∏)Purpose: during an action, b4 case has been tried, protective devices to help ∏ achieve

security so if action is brought, damages aren’t rendered futile-operate only as interim devices-∏ may face personal liability to ∆ if he misuses one of the remedies-For PR ∏ must state whether any other remedies had been sought to secure the sameaction

1) Attachment: ∏ gets from ct a paper directed to sheriff, telling sheriff to seizedesignated property to meet the monetary amount specified in the attachment-requires ct order -equity, judge will decide-60 days to serve, 90 to improve

• If property is attached it is taken out of ∆’s control and freezes it away

from ∆, it now stands as security so in case ∏ proves case and wins jdgmt resulting in an execution *

What if property value depreciates?i. may be ∏’s loss or ii. ct can order on attachment, the sale and $ will be freeze until

case is provenEX) concert tickets, current film, perishable items (crops)

Attachment Execution

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*Execution: paper w/ instructions to seize and sell as much of ∆’s property that is enoughto sell and reward ∏ $ damagesanother paper is served (execution) sheriff then levies the execution and the sale of property and its conversion into $

ATTACHMENT IN NY (and its jurisdictional function)

Sequestration: used to secure quasi in rem juris agains ∆ in $ actioni. assets can be sequestered (common in matrimonial actions)ii. attachment can’t happen in matrimonial action????iii. Not regarded as a provisional remedy*Seizure of chattel: affords a rem basis on which to adjudicate a replevin

action even w/o PJ over the ∆??

-Attachment requires bond in fed and NY ct

2) Injunction: not used in $ action, but for specific property when ∆ is threatens todo something to property that may defeat the ∏’s claim

-requires ct order Preliminary injunction/pendente lite (interlocutory injunction in fed cts): coversthe pendency of an action-enjoins ∆ from doing something while action is pending

-usually seen in actions where ∏ is seeking a permanent action-law requires bond to be posted by ∏, to cover damages incurred by ∆ if

injunction is rejected

• TRO : covers the time it would take to get the preliminary action/ puts ∆under injunction for the period it takes to bring the motion on for a preliminary injunction (ca. 2 weeks)-brought on by Order to Show Cause

-Can be done as fast as ct wants toEX) immediate ex parte application of ct if jdg is convinced thereis danger that ∆ may act while motion is pending

-easier to secure TRO in NY-bond requirement for Fed

3) Receivership: occurs when a receiver takes possession of designated property of the ∆ and protects it during the pendency of the action, pending the ∆ from sellingit, squandering it or abusing it-requires ct order

-most rare, receiver subject to supervision of ctEX) actions to foreclose mortgage on income earning property

*Do not confuse w/ receivership of corp. or bankruptcy4) Lis Pendens: notice of pendency, litigation pending

-piece of paper -doesn’t require ct order -used at your own risk

• Puts all potential buyers of property on alert that property is beingdebated over in ct

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• When buyer does title search, the lis pendens will be listed on search,and thus, dissuade buyer from purchasing property

-property is not unsellable instead it is unmarketable, buyer canstill buy property BUT he is subject to notice

• If ∏ loses case ∆ may be entitled to damages for having lis pendens

levied on his property• Erie considers Lis Pendens substantive and will apply state lawEX) mortgage foreclosure is when a lis pendens is filed

A bond is a commitment of responsibility:-any damages ∆ suffered unwarrantedly, bondperson will make good (insurance co.)

Replevin: action to recover a specific chattel/ order of seizure-order of seizure of chattel (often in conjunction w/ replevin)-can result in final acquisition of ∏EX) seizes chattel and holds it for 10 days (if nothing is done in those 10

dys then it is returned to ∆)

Mechanics lien-mechanic can sell your car to recover payment-refuse to pay bill, they can keep your car -Mechanics lien operates in regard to real estate (put a mechanics lien against the

property and foreclose the lien, file the paper in the county clerk’s office and it becomes alien against the real property-can’t be sold before lien is satisfied

-has not endured a constitutional reevaluation (lis pendens is permissible ex parte, since it has not deprived the owner of possession-just puts a noticeon the property)

ARE PROVISIONAL REMEDIES CONSTITUTIONAL?-PR often challenged on the basis that they violate due process

Sniadach case: involved prejudgment attachment of wages up to 50%RULE: due process requires the hearing b4, not after, the seizure

• US Sup Ct declared procedure unconstitutional (violates due processof law, 14th amendment), struck down WI statute

Fuentes v. Shevin:∏ missed payment on stove, goods were repossessed/ statutes of FLand PA authorized seizure w/o preliminary hearingRULE: Hearing must precede any seizure of the ∆’s property

EXCEPTIONS

i. where the seizure of property is needed to serve as a jurisdictional basesii. where a public interest is involved

*NY abandoned the requisition procedure and substituted in its place a motion-to-order -would conform to due process:

Motion to confirm the seizure/attachment-chattel is seized and applicationhas to be made

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the time pd begins to run as soon as it is seized and ∏ has torepeat motion this time on notice to ∆

William Inglis & Sons Baking Co. v. ITT Baking: ∏ file antitrust action ag ∆s an thenmoved for preliminary injunction

RULE: For a preliminary injunction, ∏ must show equity, no adequate remedy at law,merits

RULE 64 “all remedies providing for seizure of person or propertyAttachment, Garnishment, Replevin, Sequestration, and others

RULE 65 preliminary injunction and TRO“immediate and irreparable injury”

In NY-filing of summons and complaint

FED-filing of complaint

I. In both practices, summons and complaint must be served on the ∆ w/in 120dys of the initial filinga. BUT when ∏ is securing an attachment, summons and complaint must

be served w/in 60 days after granting of attachment b. Service made w/in the 120 days but beyond the 60 days will secure juris

over ∆ BUT forfeits the attachment

Important note on provisional remedies:If you have gotten a provisional remedy and ct finds it should not have been granted thereare all kinds of liability ∏ can be subject to

If ∏ doesn’t win may end up w/ lawsuit by ∆ for misuse of provisional

remedies

XVI. Res Judicata

-forecloses matters litigated, but also those which MIGHT have been litigated (claim preclusion)1) Res Judicata (claim; generally operates on final jdgmt)

• designed to put an end to a matter once duly decided

• forbids unjustifiable relitigation

• the proper course is to appeal, rather than relitigate in a separate action

2) Collateral Estoppel (“issue”)

-most influential; also generally operates on final jdgmt• scans 1st action and takes note of each issue decided in it, then if 2nd action

although based on diff cause of action, attempts to reintroduce the same issueCE precludes its relitigation; binds party to the way it was decided in 1st action

EX) Schuylkill case: ∆s found jointly liable in 1st action, CE bound ∆s to that liabilityin 2nd actionHINT: CE appears w/ same issue/ res judicata appears w/ same cause of action

*CE more frequent

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DUE PROCESS, may never use this doctrine against an individual who wasnot part of the first claim, everyone is entitled to a day in ct

Whenever estoppel is given in second action, it needs to be certain that ∆ had afull and fair opp to be heard, or else the estoppel will not be allowed

FULL and FAIR OPP TEST: ie. if ∏ sues for a mere $6,400 the ct

system doesn’t allow for it to be estopped since the ∆ did not give its bestdefense (incentive to defend is less)

-it is allowed that when there is prima facie case that casts doubton first action, the court will not let result apply in second claim byapplying the full and fair opp test

Direct attack : attacks made w/in 1st ct (i.e. appealing final jdgmnt/ or motion to vacate jdmnt)Collateral attack : attempts to get 2nd ct NOT to recognize 1st ct

3) Election of Remedies

-does not require a final jdgmnt on the merits

-often becomes relevant at the pleading stage; much narrower doesn’t play muchof a role today

now, ∏ pleads them all

• When ∏ has a choice of 2 or more remedies and sues on fewer than all; ∏ has“elected” the ones sued on and waived the others

4) Splitting (twin of the election of remedies doctrine)

• In NY, largely confined to instances in which the P with a single $ claim omits part of what is due when she sues

the part omitted is WAIVED (b/c it is a single cause of action)5) Law of the case (operates before jdgmnt is reached)

-recognizes that res judicata operates only when there is a final jdgmt

• Provides that once a point has been decided, it can’t be relitigated even w/in theaction, although it may be raised on appeal

• Prevents jdg from changing opinion on a pt (EX-finding SOL timely)6) Direct Estoppel (not commonly used term)

• Where a prior action has been dismissed on a ground that did not reach themerits but nonetheless disposed of an issue that may arise in a later action inthe same claim

7) Full faith and credit (fed constitutional law)

• American cts bound to give recognition by all other American ctsEX) ∏ sues ∆ F1 (OH) ∏ wants to sue in NY; NY must recognize OH

Full faith whenever F1 came to a jdgmt on the merits; F2 only has to show thatit had juris

With 2 inconsistent cases—later jdmnt prevails on the theory that the later should have been corrected by appeal of second case (Sunshine miners case)

8) Comity

• Foreign cts not bound by full faith and credit (free to formulate their own rulesof recognition)

Equitable estoppel

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-backup whenever facts elude one of the standard doctrines (above)-can be used where party won in first action (issue preclusion is for party who

lost)EX) ∆ makes MTD on want of juris before motion is heard, in 2nd action ∆ MTD on pendency of 1st action

ct can use equitable estoppel (finding ∆ has consented to 2nd

suit)EX) ∆ sues X for breach of K, claiming order was perfect (∆ wins)/ then when ∏ sues ∆,∆ tries to claim products were defective

ct can use doctrine of “estoppel against inconsistent positions”Stare decisis-can take hold of case before it slips away“Merger” and “Bar”-merely different ways of describing res judicata

XVII. Motions

RULE: Any order a ct can make an interested party can move for

Stipulations: agreements can be made between the two partiesEX) If a party requests an extension of time

1) Motion to dismiss MTD/ Rule 12 (b)-very important in fed practice

2) Motion for Summary Judgment (MSJ/RULE 56)

• No substantial issue of fact in the case and nothing to try

-if there is any doubt of issue motion is denied-doesn’t deny trial; ascertains nothing to try (pretrial)-liability can be ascertained summarily, and damages ordered to trial-difficult—decided on papers alone

-parties can move for SJ after trial (post trial)-no category restrictions for using MSJ

3) Motion for Judgment at Trial (directed verdict)-here, judge gets to hear testimony

• Jdgmnt granted as matter of law for one side or another w/o being sent to jury-appellate ct encourages sending case to jury

• No possibility for a different verdictWhat if there is a surprise verdict?EX) Jury thinks ∆ is entitled to jdgmnt/ Judge thought ∏

When jury brings a surprise verdict, ct can enter JNOV for other party4) JNOV (judgment notwithstanding the verdict)

-reverses jury jdgmnt for that of judge

*FOR SJ (pre and post), directed verdict, JNOV—the standard is rsble minds couldn’tdiffer

5) Motion for New Trial on the “Weight of the Evidence”

• Ct grants new trial when not confident that any party is entitled to jdgmnt as amatter of law, but finds verdict contrary to the “weight of evidence”

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A. Confirming Verdict-ct keeps hands off -leaves it up to jury to resolve issues of fact and credibility

B. Weight of the evidence-middle ground; not enough for JNOV

If ct is uncomfortable w/ verdict ct can set aside verdict instead of grantingJNOV can grant new trial, giving case to another jury* ∏ has burden of proof; (it tips sharply to set aside ∆’s verdict BUT onlymoderately to set aside ∏’s verdict)C. Matter of Law

-rsble minds couldn’t differ/ jdgmnt can go only one wayHYPO your ∆ and let’s say you wish to dispute the juris of the ct (in both fed and NY)Can be interposed in

a. in a MTD before answering, or b. as a defense in the answer Suppose defense is sustained and ∏ is knocked out of jurisdiction

-the statute of limitations is important since the ∆’s delay could allow SOLto expire as a preventive method the

-∆ can answer w/ any objection he desires except 2: (RULE 12(h) 11. the objection of personal juris (having bothered on a motion of other

grounds, making the motion on other ground waived juris is conceded

*Additor and remitator-are aspects of setting aside the verdict contrary to weight of theevidence (to monetary amounts)

*NY doesn’t allow subpoena to be served outside of state/ ignoring subpoena = contempt

of ctNorton v. Snapper Power Equipment: injured ∏ sues manufacturer of lawn mower/trial ct grants JNOV and higher ct reverses and remands jdgmnt

• JNOV should be granted ONLY where evidence so strongly and so favorably points in the favor of the moving party that rsble people could not arrive at acontrary verdict

XVIII. Discovery and Disclosure

Discovery-describes devices (NY calls it disclosure): series of devices designed to alloweach party to prepare thoroughly for trial of the case/ so there won’t be any surprises, to

know stance of witnesses-Under Common Law-there was no pretrial disclosure-Fed R of Civ Pro in 1938-changed things (rules 26-37)-As significance of rules of discovery rose, importance of pleadings declined

(relaxed nature of pleadings)What is the standard for discovery (applies to state cts as well)?

RELEVANCY-anything relevant to claim or action, party is entitled to seek any

relevant info relevancy must be established

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-action will be dismissed for the party who is not revealing relevant info-it need not be shown that the info you are seeking will be admissible as evidence

When will the law disallow discovery?-privileged information that could be violated in the sanctified relationshipsEX) self-incrimination is barred by the constitution,

EX) of special relationships: attorney-client; doctor-patient; husband-wife-if violates either of above, person can refuse to answer

Attorney’s work product on material prepared for litigation of case- held distinct from privileged communication,-There is a policy limitation that other side can’t have access to it:

i. the work product is generally immunized but conditionally(not absolute)EX) photographs of crime scene (if ∆ can show that hecan’t replicate photos and would ruin defense the ct can liftimmunity)

ii. privileged communication is absolute

Devices of discovery don’t stop the abuses-i.e. too many demands/ resistance

• Protective Order is available at all times, cures against abuseEX) protection of trade secrets

Notice served brings on disclosure; ct orders ordinarily not necessary:In NY and Fed disclosure are set up by stipulation (agreement)

-lawyers call and schedule disclosure events

Some situations where an order is required:i. depose someone in a prisonii. if you want disclosure pretrialiii. if you want disclosure during trialiv. if notice is disobeyed

*(NY deposition requires 20 days notice, FED ct requires rsble notice)

In NY action when you need pretrial testimony-How do you depose a nonparty witness?

i. A subpoena:Is a process, subjects witness to compel testimony(not needed for a party since they are already subject to juris of ct)

ii. other side must be noticed of depositionAffidavits

-An affidavit that is not an adversary document is inadmissibleInstead, ask witness to voluntarily submit to a deposition w/ opposing party if that

is agreed to that deposition may be used in NY

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• NO notice to other side you can’t use it in evidenceStatute enables each state to lend disclosure machinery to another

EX) Ask MI for deposition device which can subpoena the MI witness allowingthe deposition to be admitted in NY (here, a MI lawyer may assist)

DEVICES1) Deposition (oral) :Q & A session (usually around table) The party doing the deposing is a Deponent

2) Deposition on written questions:-mainly used for depositions outside state-written questions furnished to officer/ NO variations

A. Each party entitled to depose other party, usually ∆ goes first since ∏ has burden-Party being deposed always accompanied by their counsel-MUST be conducted in front of notary public (or someone who is able to take

oaths) Stenographer (may also be notary)∆’s lawyer questions ∏ about anything of relevanceRelevant inquiries (anything that reflects on the case)Purpose of deposition is to establish full and free inquiry

Allows you to be fully prepared for trialIf there is an objection at deposition it can be brought before it is read

during trial

• You don’t waive objection if you failed to raise it at depositionEXCEPTION: form of question, any objection to mere form that arises at

deposition MUST be objected

B. ∏’s lawyer can then question his own client-at deposition lawyer can cross-examine own client this not be allowed at trial

C. After deposition, transcript sent to questioning lawyer -sends transcript to deponent for review-any corrections are added in and witness is sworn in again

During the trial—following rules govern:i. If deponent (non party or party witness) takes stand and starts to testify and a

witness makes an inconsistent statement-can be used on cross-examination for impeachment purposes(May not be used in evidence in chief, just a reading of q and a)

ii. Any party can use any adverse party as evidence in chief (jury entitled toaccept party as direct evidence in chief)-A party may NOT use his or her deposition as evidence in chief iii. Can’t use any witnesses’ deposition as evidence as chief b/c unless a

foundation is laid (i.e. person who gave deposition is dead or moved far away)

3. InterrogatoriesMuch more sterile and unsatisfactory

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Interchange of written questions-Written qs sent out by mail

-other side required to give sworn responses-Much more active in fed practice than in NY

In fed practice they can touch any subject

Rule 26 (certain things must be voluntarily sent to opposing side)-Restricted in legislature in negligence cases

4. A. Commission to take testimony-someone designated by ct to go somewhere and taketestimony (usually outside the state, designed to save $)

B. Letterogatory/ LETTER OF REQUEST-a statement by the judge addressed totribunal out there requesting testimony of someone in another state, (asks for aid of judicial machinery)

-proves especially helpful w/ foreign countries

5. Demand for address: each party entitled to know address of other

6. Discovery and Inspection: seeker is after a thing usually piece of paper, but can beused to require entry onto real property

7. Physical and Mental Examinations:A. (Ex. Personal Injury/ ∆ sets up a physical examination)

(Ex. Paternity test)A ∏ can examine a ∆ when his condition was put into controversy

-If ∆ claims falling asleep at wheel an examination may be required-physical examination is more frequent in state than fed ct

B. MentalCompetency is under controversy

8. Request for Admission/ demand or Admit:Piece of paper w/ a fact that other side is required to admit or deny(owner of car, genuineness of document)

Variations:i. You may have telephone/videotaped depositions on consent of partiesii. Physical items are permissible as well, i.e. stoves to inspect

Spoliation of evidence (destruction)/ ct will address

Document discovery: smaller items will be copied for both side larger items tend to be paid for by requesting partyEx: if all 10,000 documents are relevant then it must be disclosed

*This poses more issues in ct than other devicesEX) ∏ seeks doc from ∆ who doesn’t want to disclose it

(If it can be shown it is a particular doc prepared for litigation then it willnot have to be turned over)

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EX) bus accident and then filed accident report-was the report filed for accident purposes?

RULE: it must to have been shown to be prepared exclusively for litigationWhat would be the risks if you allow other side to invade documents before searched

-it may be privileged information

What happens if disclosure is resisted?

the disclosure practice is a sanction RULE 37

It is expected that each party will respond to notice w/ the disclosure info, if itis disobeyed unrsbly an order will be invoked and if the order isn’t followedthen other side will be guilty of contempt if resistance continues

Order of Preclusion : Precludes ∏ from putting in evidence from that fact

Deemed for -

Ultimate dismissal of ∏’s action or

Inquest assessment of damages, trial (ct can assess liability in SJ not damages)

∏ is given a new chance to submit to deposition (granted when ∆’s motion to

dismiss ∏’s failure to disclose, is granted unless…)??

DO YOU NEED JURIS FOR DISCOVERY?EX) ∏ sues ∆ on long arm statute∆ moves to dismiss on grounds of no long arm jurisCan you require a ∆ who argues there is no juris to answer questions about juris?YES, in NY and FED ct, there is juris to make ∆ answer questions about juris

-“the first turn of a wheel” his MOTION is enough to get jurisIf the ∆ fails to appear and judgment is rendered by default, he is wrongIF he is found in personam in IL, does IL have to recognize judgment in NY?

-Ill must abide by juris only if ct in NY had juris, but that is the open question

AGAIN, YOU KNOW THIS!!!-2 ways to raise PJ:i. MTDii. raise it in answer in appearance of action(if you raise it in neither you waive it, duh)

XIX. Appeals

NY from trial ct (Supreme) to intermediate ct (Appellate division)-interlocutory orders are appealable as a matter of right

FED district ct to Ct of Appeals (highest ct)

-interlocutory orders not appealable fed judges have immense power:EXCEPTIONS are in § 1292

i.e. injunction 1292(a) major exception1292(b)i. certification

1. order involves “controlling q of law”2. “substantial ground for a difference of opinion” on it

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3. if immediate appeal may materially advance the ultimate termination of the litigation

ii. determination under RULE 54(b)

EX) ∏ sues ∆, ∆ MTD for lack of juris, motion is granted

Can ∏ take an appeal from that judgment?YES, b/c it is a final judgment (closes the case)

If motion is denied, INTERLOCUTORY, judgment is not appealablesince case is not closed-In NY Almost anything in the form of an order is appealable

§1291 FINAL/ §1292 NONFINALMotion for Leave for APPEAL

-if appellate division votes against your motion then you can’t appeal to court of Appeals-must show interest of law relevant to entire nation, in order to be granted to

LEAVE TO APPEAL to highest ct:-majority of appeals are denied-apply for leave to appeal (10 days from order of district ct)

Petition for (writ of) certiorari-motion for leave to appeal-an order directed by USSupreme court telling lower court to review the case, certify the record and send it up

-if the certiorari is granted that case will make law since ct finds it importantWrit of Certiorari-Review case after tried on recordWrit of Mandamus-gives gov’t official to perform act mandated by law (extremely rare toget something up for review this way)

Matter of right:

-NY final judgment is absolutely appealable as a matter of right-Fed ct-limited to a portion of cases (judicial apportionments)

XX. Enforcement of Judgments

What kind of judgment is enforcement required more than others?-When sued in tort, they are more concerned w/ getting jdgmt b/c insurance willcover the cost

EX) ∏ wins million dollar judgmentIf ∆ will pay the judgment no need for enforcement devices, if not it will

stand against your credit (if no assets, suit probably will not be brought)-if an appeal is taken, then a stay should be asked for:

∆ can apply for stay or get an automatic stay if he posts the bondEnforcements:Ejectment (passe com artetis):group of people sheriff can deputize to help him move people of land off of the land∆ can be found in contempt if doesn’t abide by judgments

SOL on a judgment is 20yrs, if ∆ comes into property or $, ∏ can collect-∆s shouldn’t be pushed into bankruptcy

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If ∆ has not paid, and has not appeal then you enforce judgment

Execution:Paper drawn up by lawyers creditor, tells sheriff to levy on property and sell it at public

auction, to pay ∏ off property execution

Any process where ∏ is seeking satisfaction of garnishee (property of ∆, wages of ∆ etc)

-any 3rd person who has property of ∆ (i.e. bank or employer)i. Property Executionii. Income Execution

*NY doesn’t allow a pre-levy against wages-Income execution-sheriff served order on employer, employer toldto extract 10% of ∆’s wages and levied to sheriff -∆ given 1 month to pay on his own, b4 employer is notified

Is there a way to get more out of ∆’s wages?Installment payment order is a device. If the debtor can pay more than the

10% you can move the ct for an installment payment order EX) on proof that ∆ is earning a lot of $ and should pay more than 10% if ct finds ∆ can live on 60% or 30% of his income, the judgment will begranted according to determined proportion

-requires a ct order -requires proof, affidavits and investigation (conduct deposition indisclosure proceedings)

-Disclosure proceedings are also available for post-trialactions (to get the necessary info-can question banks,neighbors e.t.c)

What do you do when it is known the item is inside?EX) ∏ delivers execution to retrieve ∆’s painting-Sheriff doesn’t break into a residency for levy of execution if it is a validexecution

Delivery order (turnover order) a motion addressed to ∆, to require ∆ to give the paintingto sheriff, for sale

-if ct is convinced ∆ has painting he will be ordered to turn it over tosheriff, if not ∆ will be in contempt

Execution doesn’t go by motion

What if ∆ may do something to property, rendering it useless?

Restraining Notice (any property belonging to ∆ must not be given to ∆ until order of action)-most effective against garnishees-garnishee: any one who has a debt owed to ∆

*FED rules of Civ Pro have not addressed enforcement of jdgmnts, they adopt the law of the state where the fed ct is located, hence above is all NY (applied by fed ct)

Statute starts off w/ what property of ∆ ∏ can pursue?

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-if loser doesn’t pay and winner wants assistance in enforcing award-winner canhave ct confirm the award, by getting a jdgmt on the award-Can award be overturned?YES, on narrow grounds

-not on the grounds of error

-will be overturned if arbitrator was concealed-arbitration has no power to enforce jdgmt

EX) NY state is not good on punitive damages and NY Co. is concerned they will be subject to punitive damages

-Ct can turn over arbitration jdgmts if there is a “manifest disregard of thelaw”

NY will not recognize overturning such jdgmts, b/c arbitrators not required tofollow law

B. What procedural rules don’t apply?

i. Technical rules of evidence don’t apply in arbitration

C. Who decides if dispute is arbitrable?-The cts decide, app can be made to determine arbitrability(i.e. Motion to stay, a motion to compel arbitration)-party that desires arbitration, demands to serve/ demand for arbitration

requires person who doesn’t want arbitration to go to ct to stop arbitration-if opponent doesn’t go to ct, claim is deemed arbitrable by default

D. Fed or State actWhen is fed act applicable and when is state act applicable?

-Separate who can hear argument and what law will be applied?-depends on realm of law that dispute arises inFED will be applied in:

i. interstate commerceii. maritime lawEX) ∏ sues ∆, demands in arbitration, NY supreme Ct,

what law is applied? you must ask what was the transactionSTATE will be applied in:

-Erie, says state act must be applied*Two acts are virtually identical…but

-southern states very anti-arbitration, so in the south applicable act would be

momentous

EX) Difference-SOL fed and state have a 1yr pd for applying to confirm the awardBUT 1yr SOL can begin running at different times:

-from time award is made v.-at the time award is served on loser

If brought in fed ct, must have subject matter juris—will apply act based on transaction

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Arbitration v. MediationMediation-results not binding

CLASS DISCUSSIONS:

Fed Rule 23 allows a class action• which enables any member of the class who have been hurt or victimized by the

D’s wrongdoing to get together voluntarily to bring the class action on behalf of themselves and all other members of this class

• After suit is brought the P’s must make an application to approve and confirm theclass action according to rule 23

Pg 11-Ripeness doctrine, when a ct finds something MOOT?

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