F16/Civ. Pro. I/Peters Syllabus v1

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CIVIL PROCEDURE I

LAW 600 – SECTION 329

FALL 2016 – PROF. PETERS

SYLLABUS (version 1 dated 08/03/16)

Note: This syllabus and the included schedule are subject to change with such notice as

is practicable. Students should read this entire document carefully. Each enrolled stu-

dent will be assumed to have read and understood its contents. Anyone with questions

about the syllabus or the course should contact me (Prof. C.J. Peters).

Class Meetings:

Except as otherwise announced or indicated on the schedule, class will meet every Mon-

day and Wednesday from 1:30 to 2:45 pm in AL 408. Note that the assigned classroom

may change early in the semester. Check posted classroom information for updates.

Reaching the Instructor:

My office is AL 516. I will post regular weekly office hours at the beginning of the se-

mester. My regular office hours are first-come, first-served and do not require an ap-

pointment; however, you may contact me to make an appointment if you choose. I will

hold special office hours following the midterm and during the week before the final ex-

am. I also am happy to meet with you at a mutually convenient time outside my posted

hours, and you are welcome to drop in whenever you find me in my office.

My office phone number is 410-837-4509 and my e-mail is cpeters@ubalt.edu. My as-

sistant, Laurie Schnitzer (AL 1008), can be reached at 410-837-4689 and

lschnitzer@ubalt.edu.

Course Description:

This course focuses on the process and procedures of a civil lawsuit, from the filing of

the complaint through the final appeal. The course will provide an introduction to the

structure and operation of the state and federal court systems in the United States, and

will concentrate on cases brought in the federal courts, conducted pursuant to the Federal

Rules of Civil Procedure. Topics include pleadings, pre-trial motions, the discovery pro-

cess, trial by jury, judgments and relief, motions after judgment, and appeals.

Course Materials:

The following texts are required for this course:

Casebook. The required casebook is Joseph W. Glannon, Andrew M. Perlman, & Peter

Raven-Hansen, Civil Procedure: A Coursebook (2nd

edition 2014) (“Glannon”), pub-

lished by Aspen/Wolters Kluwer. You must use the 2nd

(2014) edition of Glannon, not

the earlier 1st (2011) edition.

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Rules supplement. In addition to the Glannon casebook, you must acquire the most re-

cent (2016) supplement to that casebook containing the Federal Rules of Civil Procedure,

selected procedural statutes, other procedural materials, and revisions and additions to the

casebook.

Preparation Problems:

In advance of most class meetings, I will post a series of problems designed to help you

prepare for class. The problems typically will be posted on the TWEN website roughly a

week before class. I expect you to review these problems in conjunction with your as-

signed readings.

Course TWEN Website:

Use of the TWEN website is a required element of the course, so please sign up for the

class on TWEN as soon as possible. Some required readings may be made available only

on the TWEN site, and important notices will be distributed to the email address you

have registered with Westlaw (so make sure that address is current).

Student Learning Outcomes:

This course is designed to generate and assess the following student learning outcomes:

Outcome 1: Students will demonstrate a working knowledge of the fundamental ele-

ments of the following procedural doctrines: pleading; motions to dismiss; discovery;

summary judgment; jury trials; post-trial motions; and appeals.

Outcome 2: Students will demonstrate competence in applying these procedural doc-

trines to analyze legal problems, make legal arguments, and draft legal documents.

Grading:

Subject to the attendance policy described below, your final grade in the course will be

based on the following three components. See the schedule at the end of this syllabus for

the anticipated date of each component.

Pleading Problem Set (5/100 points). I will award full credit (5 points) for a good-faith

effort and no credit (0 points) for lack of a good-faith effort, for failing to turn in the

Problem Set, or for turning it in after the deadline. The Pleading Problem Set is designed

to help you develop a working knowledge of pleading doctrine (Outcome 1) and compe-

tence in applying that doctrine (Outcome 2), and to help you self-assess your progress

toward these outcomes,

Midterm (20/100 points). The midterm will be an in-class, open-book examination ad-

ministered during a regularly scheduled class session. It will consist of a small number of

essay or short-answer questions. You may use a laptop with the required exam software

to write your answers. The midterm will be similar in format and style to the final exam

and will be scored similarly, using blind grading. It will be designed to assess (and help

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you self-assess) your working knowledge of the doctrines covered prior to the midterm

(Outcome 1) and your progress toward competence in applying these doctrines (Outcome

2).

Final Exam (75/100 points). The final exam will be a three-hour, in-class, open-book

examination consisting of essay questions, short-answer questions, or both. You may use

a laptop with the required exam software to write your answers. The final exam will be

designed to assess your working knowledge of the doctrines covered in the course (Out-

come 1) and your competence in applying these doctrines (Outcome 2).

After the final exam, I will aggregate the points earned by each student on the three grad-

ed course components to determine a point total (out of a possible 100 points). I then will

assign grades based on students’ total scores according to the School of Law’s required

first-year curve.

Note that although the midterm and the final exam will focus primarily on subjects and

materials we have discussed in class, you may be tested on anything in the assigned read-

ings, including material we have not covered in class.

Course Expectations:

Each student enrolled in this course will be expected to fulfill the following minimum

requirements:

Enrollment in the course TWEN website (see above), using a current, valid email

address, and regular monitoring of emails sent by the instructor via the TWEN

website or otherwise.

Regular and timely class attendance (see “Attendance” below).

Conduct in the classroom and in other aspects of the course that is professional,

polite, and respectful of classmates, instructors, and other participants (see in par-

ticular “Distractions in the Classroom” below).

Timely completion of all course assignments.

Preparation for class, including completion of the assigned readings and review of

the preparation problems (if any) prior to class. (The reading assignments for

each class meeting appear in the schedule of assignments below, which may be

modified as the semester progresses.)

Participation in class when asked to do so (see “Class Format and Participation”

below).

Adherence to all applicable School of Law and University policies, including the

Academic Integrity and Sexual Misconduct and Nondiscrimination policies (see

below).

These, however, are the minimum expectations of students enrolled in the course. Stu-

dents who excel in law school invariably do more than fulfill these minimum require-

ments. While there is no single formula for success, excellent students typically do most

or all of the following:

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Spend at least 2-3 hours preparing for each hour of class time.

Begin outlining the course relatively early in the semester.

Discuss the course regularly with other students, e.g., in a study group.

Meet with the instructor after the midterm to review their performance, and occa-

sionally during the semester to discuss material or issues they do not fully under-

stand.

Occasionally volunteer relevant questions, answers, or comments at appropriate

times in class.

Devote substantial time to studying for the midterm and the final exam.

Attendance:

Pursuant to ABA and School of Law policy, each student will be allowed a maximum of

five (5) absences during the semester. Any student who is absent from more than five

classes will be withdrawn from the course and given a final grade of “WA” (withdrawn

due to absences), which will require that student to retake the course. Reasons for ab-

sences are irrelevant, except as required by School of Law or University policy.

I will monitor attendance by means of a sign-in sheet circulated at the beginning of class

each day. I reserve the right to count students who come in late as absent, although I typ-

ically will not exercise that right except in cases of egregious or repeated tardiness. Each

student is responsible for keeping track of his or her own attendance record and for con-

tacting me in case of questions or potential discrepancies.

Class Format and Participation:

Typically I will “cold call” on a number of students during each class meeting. Being

called on during a class does not mean you are immune from being called on again. I

will try (but may fail) to call on each student at least once during the semester. If you

have a question or comment during class, please don’t hesitate to raise your hand even if

you are not “on call.”

Computers in the Classroom and Note-taking:

Empirical research suggests that students benefit more from taking class notes the old-

fashioned way – writing them by hand – than from typing them into a computer. (See

this June 2014 article from Scientific American online:

http://www.scientificamerican.com/article/a-learning-secret-don-t-take-notes-with-a-

laptop/.) Computers present the obvious problem of distractions and the less obvious, but

probably more serious, problem of “court reporter’s syndrome”: note-takers tend to

“zone out” and simply record everything they hear without mentally processing it. None-

theless, I am not taking the step of banning computers from the classroom. I want you to

be able to access the online course materials in the classroom if you choose, rather than

printing them out before class. And sometimes computers serve other useful classroom

functions. But I do strongly suggest that you at least experiment with taking notes by

hand this semester.

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Distractions in the Classroom:

Please note and respect the following policies, and contact me if you have any questions

or think you have a good reason for an exception:

Any sound-emitting devices (e.g., cell phones) must be muted or switched off

during class.

Unless I specifically allow otherwise, you may not communicate telephonically or

electronically with anyone else while class is in session.

Please avoid any behavior that might distract a classmate, or for that matter the

instructor. Common sense should be your guide here; it will be mine in enforcing

the policy.

PowerPoints and Class Recordings:

Shortly before each class, I will post on the TWEN website any PowerPoint slides I in-

tend to use that day. I also will make a Panopto audio/video recording of each class,

which you will be able to access online. Please do not rely on the recordings, however,

as the quality often is not good and the technology sometimes fails. If you would like to

record a class by any other means, please ask my permission first; as a rule, I will allow it

only in exceptional circumstances.

Class Cancellation:

If I must cancel a class, notices will be sent to students via email and posted on the class-

room door. If there is inclement weather, students should visit the University of Balti-

more web site or call the University’s Snow Closing Line at 410-837-4201. If the Uni-

versity is open, students should presume that classes are running on the normal schedule.

Exam Preparation:

Although effective exam-study techniques vary greatly by student, subject, and instruc-

tor, many civil-procedure students benefit from writing answers to practice questions and

hypotheticals; doing so helps solidify your knowledge of the subject and provides much-

needed practice in exam-style analysis. The Pleading Problem Set is designed both as a

platform for reviewing the material and as an aid in exam preparation, and you can expect

some questions on the Midterm and the Final Exam to resemble the Problem Set in for-

mat and style. I also will post several practice exam questions and model answers toward

the end of the semester. The Glannon casebook contains many review questions, and ad-

ditional questions can be found in many commercial study aids (see below).

Study Aids and Treatises:

I do not keep up with the many civil-procedure study aids that are available, but I do have

positive experience with Glannon, Civil Procedure: Examples and Explanations (As-

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pen), which is written by one of your casebook authors and is now in its sixth edition.

Examples and Explanations walks you through the doctrine fairly clearly and provides

many hypotheticals for practice in applying it. A majority of the book covers material

taught in Civil Procedure II, but Part Four of the latest edition tracks much of what we

will study this semester.

A word of caution about study aids: Do not rely on them very heavily. Often they get

things wrong, and even more often they emphasize different things, or the same things in

a very different way, than your professors do. Use them sparingly and with a grain of

salt. In my experience, study aids tend to work best as a source of hypotheticals and

practice questions rather than as a primary tool for learning a subject.

The field of federal civil procedure features not one, but two comprehensive and highly

authoritative multi-volume treatises: Moore’s Federal Practice (Matthew Bender) and

Wright & Miller’s Federal Practice and Procedure (Thompson/West). Sets of both trea-

tises are available in the library (don’t even think of buying a copy; they consist of doz-

ens of volumes and cost thousands of dollars for a full set). Moore’s and Wright & Miller

are the places to go for a detailed overview of a certain topic in federal procedure or for

the answer to a particular procedural question. Hint: use the table of contents volume (at

the beginning of the set) and the index volumes (at the end). The coverage of both trea-

tises is similar, and the choice between them depends on availability and taste. (I’ve al-

ways preferred Wright & Miller.)

Academic Integrity:

Students are obligated to refrain from acts that they know or, under the circumstances,

have reason to know will impair the academic integrity of the University and/or School of

Law. Violations of academic integrity include, but are not limited to: cheating, plagia-

rism, misuse of materials, inappropriate communication about exams, use of unauthor-

ized materials and technology, misrepresentation of any academic matter (including at-

tendance), and impeding the Honor Code process. The School of Law Honor Code and

information about the process is available at

http://law.ubalt.edu/academics/policiesandprocedures/honor_code/.

Title IX Sexual Misconduct and Nondiscrimination Policy:

The University of Baltimore’s Sexual Misconduct and Nondiscrimination policy is com-

pliant with Federal laws prohibiting discrimination. Title IX requires that faculty, student

employees, and staff members report to the university any known, learned or rumored

incidents of sex discrimination, including sexual harassment, sexual misconduct, stalking

on the basis of sex, dating/intimate partner violence or sexual exploitation, and/or related

experiences or incidents. Policies and procedures related to Title IX and UB’s nondis-

crimination policies can be found at http://www.ubalt.edu/titleix.

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Disability Policy:

If you are a student with a documented disability who requires an academic accommoda-

tion, please contact Leslie Metzger, Director of Student Services, at 410-837-5623 or

lmetzger@ubalt.edu.

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Schedule of Assignments:

Designations of chapters, sections, etc. refer to the Glannon casebook.

The principal Rules, statutes, and constitutional provisions are listed below, but be

sure to read all such provisions mentioned in the assigned reading. Most provi-

sions are available in the Rules supplement to Glannon; the remainder can be ac-

cessed via links provided on the TWEN site.

Any other materials not included in Glannon are indicated with a “[T]” and can be

downloaded from the TWEN course website under the relevant class number.

Date Topics Assignment

Principal Rules,

Statutes, Etc.

Principal Cases & Materials

Class 1

MO 8/22

Introduction to the

course and the subject

Pleading Introduction and histo-

ry; “notice” pleading

Preface, Chapters 1-2

Chapter 13, §§ I-II, §

III through Q11 on

p432

U.S. Const. Art. III,

§1, §2, ¶1

Take a quick look at

all Federal Rules

mentioned in

Chapters 1-2

FRCP 8(a), 8(d)-(e),

12(b)(6)

Dioguardi v. Durning, 139 F.2d 774

(2d Cir. 1944)

Class 2

WE 8/24

“Notice” pleading,

cont.

Chapter 13, § III cont. FRCP 8(a),12(b)(6) Dioguardi, cont.

Class 3

MO 8/29

“Notice” pleading,

cont.

Chapter 13, § III cont. FRCP 8(a),12(b)(6) Doe v. Smith, 429 F.3d 706 (7th Cir.

2005)

Class 4

WE 8/31

Heightened pleading

Chapter 13, § III cont.,

§ IV

FRCP 9(b) Doe, cont.

Leatherman v. Tarrant Cnty. Narc.

Int. & Coord. Unit, 507 U.S. 163

(1993)

MO 9/5

No class today (Labor Day)

Class 5

WE 9/7

“Plausibility” pleading

Chapter 13, § V to

p450 (up to Ash-

croft v. Iqbal)

Twombly case (edited

version) [T]

FRCP 8(a), 9(b)

Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007)

Class 6

MO 9/12

“Plausibility” pleading,

cont.

Chapter 13, finish § V,

§ VI

FRCP 8(a) Ashcroft v. Iqbal, 129 S. Ct. 1937

(2009)

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Date Topics Assignment

Principal Rules,

Statutes, Etc.

Principal Cases & Materials

Class 7

WE 9/14

Responding to the

complaint: default

judgments; Rule 12

motions

Chapter 14, §§ I-II, §

III.A (note: there is

no § III.B)

FRCP 55, 12(b),

12(e), 12(f)

Virgin Records America, Inc. v.

Lacey, 510 F. Supp. 2d 588 (S.D.

Ala. 2007)

Matos v. Nextran, Inc., 2009 WL

2477516 (D.V.I. 2009)

Class 8

MO 9/19 Pleading Problem Set

distributed [T]

Responding to the

complaint: Rule 12

waiver; the answer

Chapter 14, § III.C; §

IV to p504 (up to

Ingraham case)

FRCP 12(b), 12(g),

12(h), 8(b)-(e)

Hunter v. Serv-Tech, Inc., 2009 WL

2858089 (E.D. La. 2009)

Reis Robotics USA, Inc. v. Concept

Industries, Inc., 462 F. Supp. 2d

897 (N.D. Ill. 2006)

Class 9

WE 9/21

Responding to the

complaint: the an-

swer; affirmative de-

fenses; concluding

exercise

Chapter 14, finish §

IV, §§ V-VII

FRCP 8(b)-(e),

12(b), (f)

Skim U.S. District

Court, N.D. Ill.,

Local Rule 10.1

(Supp.)

Ingraham v. United States, 808 F.2d

1075 (1987)

Skim State Farm Mut. Auto Ins. Co.

v. Riley, 199 F.R.D. 276 (N.D. Ill.

2001)

Review Doe v. Smith from Class 3

Class 10

MO 9/26

Pleading Problem Set

due by 5:00 pm to-

day (via TWEN)

Ethical obligations in

pleading (and else-

where)

Chapter 15, §§ I-II

FRCP 11

Hays v. Sony Corp. of America, 847

F.2d 412 (7th

Cir. 1988)

Class 11

WE 9/28

Ethical obligations,

cont.

Ch. 15, secs. III, V, VI

(skip sec. IV)

FRCP 11(b)(2), (c)

Hunter v. Earthgrains Co. Bakery,

281 F.3d 144 (4th

Cir. 2002)

Class 12

MO 10/3 Discuss Pleading

Problem Set

Review Pleading

Problem Set and

your answers

Class 13

WE 10/5

Amending pleadings

Chapter 16, §§ I-III,

VII

FRCP 15

Beeck v. Aquaslide ‘N’ Dive Corp.,

562 F.2d 537 (8th

Cir. 1977)

Class 14

MO 10/10

In-class midterm

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Date Topics Assignment

Principal Rules,

Statutes, Etc.

Principal Cases & Materials

Class 15

WE 10/12 Discovery Introduction; informal

factfinding; scope of

discovery

Chapter 21, § I, § II to

p771 (stop before

Gaylard case), § III

to p783 (stop before

“Notes and Ques-

tions: The Scope of

Discovery”)

FRCP 26(b)(1)

Committee note to

2015 revisions to

FRCP 26(b)(1) [T]

Class 16

MO 10/17

Exclusions from scope

of discovery: privi-

lege; “work product”

Chapter 21, continue §

III from p783

(begin with “Notes

and Questions”) to

p797 (stop before

note 4, “Codifying

Hickman”)

FRCP 26(b)(1) Hickman v. Taylor, 329 U.S. 495

(1957)

Class 17

WE 10/19

Exclusions from scope

of discovery: “work

product” cont.; non-

testifying expert in-

formation

Chapter 21, continue §

III from p797

(begin with note 4)

to end, § IV

FRCP 26(b)(3)-(5)

Class 18

MO 10/24 Discuss midterm Review Midterm and

your answers

Class 19

WE 10/26

Chronology and tools

of discovery

Chapter 22, § I, § II to

p812 (stop before

Flores case), § II

from p815 (begin

with “Notes and

Questions”), §§ III-

IV (skip § V), § VI,

§ VII through p848

(stop before Sacra-

mona Case), § VII

from p854 (begin

with note C), §§

VII-IX

Sample discovery

documents [T]

FRCP 4(m); 16(b);

26(a), (d), (f); 28-

36

Committee notes to

2015 revisions to

FRCP 4(m), 16(b),

26(d) & (f) [T]

Class 20

MO 10/31

Chronology and tools

of discovery: in-class

exercises

In-class exercises [T]

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Date Topics Assignment

Principal Rules,

Statutes, Etc.

Principal Cases & Materials

Class 21

WE 11/2

E-discovery: a brief

introduction

Chapter 22, § V

FRCP 26(b)(2)(B)-

(C), 37(e)

Committee notes to

2015 revisions to

FRCP

26(b)(2)(C), 37(e)

[T]

Zubulake v. UBS Warburg LLC

[Zubulake I], 217 F.R.D. 309

(S.D.N.Y. 2003)

Class 22

MO 11/7

Controlling discovery

abuse

Chapter 23

FRCP 26(c), 26(g),

37(a)-(d), 37(f)

U.S. District Court,

N.D. Ill., Local

Rule 37.2 (Supp.)

Chudasama v. Mazda Motor Corp.,

123 F.3d 1353 (11th

Cir. 1997)

Class 23

WE 11/9

Pretrial conferences and

orders

Dispositions Without

Trial Introduction; voluntary

dismissal; summary

judgment

Chapter 26, §§ I, § II

from p984 (begin

with note 6), § III to

p985 (stop before

Davey case), § IV

Chapter 27, § I, §

IV.A-C

FRCP 16

Committee notes to

2015 revisions to

FRCP 16 [T]

FRCP 56

Slaven v. City of Salem, 438 N.E.2d

348 (Mass. 1982)

Class 24

MO 11/14

Summary judgment,

cont.

Chapter 27, § IV.D, V FRCP 56 Celotex Corp. v. Catrett, 477 U.S.

317 (1986)

Class 25

WE 11/16 Judges Trumping Ju-

ries Introduction; judgment

as a matter of law

(“directed verdict”

and “JNOV”)

Chapter 29, §§ I, II.A

FRCP 50(a), (b)

Pennsylvania RR v. Chamberlain,

288 U.S. 333 (1933)

Class 26

MO 11/21

Judgment as a matter of

law, cont.; new trial

Chapter 29, §§ II.C,

III-IV

Chapter 31, §§ I, V

FRCP 50(a), (b)-(e),

59, 60

Lane v. Hardee’s Food Syst., Inc.,

184 F.3d 705 (7th

Cir. 1999)

Class 27

WE 11/23 Appeals Introduction; final

judgment rule

Chapter 32, §§ I-II, §

III to 1161 (stop be-

fore MacArthur

case), § IV.A

28 USC § 1291

In re Recticel Foam Corp., 859 F.2d

1000 (1st Cir. 1988)

Class 28

MO 11/28

Exceptions to the final

judgment rule; stand-

ards of appellate re-

view

Chapter 32, § IV.B-C,

§ V to p1191 (stop

before Recticel

case), §§ VI -VII

FRCP 54(b)

28 USC § 1292

Recticel, cont.

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Date Topics Assignment

Principal Rules,

Statutes, Etc.

Principal Cases & Materials

Optional online Q&A review sessions Dates & times TBD

Final exam Date & time TBD