Motion To Dismiss

Dismiss case based on the complaint, it didn't make a legally valid claim, no plain statement, nothing to recover damages from.

Civil Procedure Involves:

CIVIL PROCEDURE INVOLVES:

-          A GOVERNMENT  ACTION INVOLVING,

-          DEPRIVATION OF

-          LIFE, LIBERTY OR PROPETY FROM

-          A LEGAL PERSON

-          DENYING THEM DUE PROCESS

Goldberg v. Kelly

Welfare benefits terminated w/o notice or hearing to refute claims. Majority: the welfare system has  to give notice and a hearing to challenge the stopping of benefits, to ensure due process for others and a back log of all monies withheld. Welfare is property so must be pre-termination hearing (private interest was stronger than public interest)

Matthews v. Elderidge

Man lost S.S. and disability benefits which suppliment income - Court reversed b/c it was supplimental income and if wrongfully denied backlog of money would be given.

The test balances (1) the importance of the interest at stake; (2) the risk of an erroneous deprivation of the interest because of the procedures currently used, and the probable value of additional procedural safeguards; and (3) the government's interest.

Doehr Case

Doehr has property attached after G says they injured him. They say it's a violation of 14th Amendment b/c they weren't given pre-attachment hearing. Court says private interest higher than public, G had no interest in the house and only wrote 5 sentences as to why he would win case and attachment should be made and post attachment hearings are only allowed in an emergency (the house may be sold quickly thus attachment necessary).

Lassiter Case

Turner Case

Man risks encarceration for not paying child support. Court says though he may be encarcerated public interest is still higher because if they give him counsel the mother of kids would deserve counsel which is too expensive and if counsel was given to father and not mother the risk of error would still exist. Besides the legal terms in this case are easy to understand.

Mullane's Test

·        Noticed is reasonably calculated if it provides information (pendency) and gives adequate opportunity to respond (time)

They say that the beneficiary should be mailed the notice to ensure that it is received.  If you don’t have their addresses then publishing notice in the paper would be ok, because their interest would be represented by other common trustees and it would be too costly to hunt them down.

Greene Case

Posting notice of eviction on the door is not good enough in this case b/c sheriff knew the notices were being torn down by neighbors and kids (it is a case by case whether on door notice is good enough).

Kashoggi Case

Millionaire owns multiple homes in multiple countries so which one should notice go to. Courts say the combination that you are there at the time and that you treat it in some way as a permanent residence then notice can be given there.

Twombly Case

Sherman Anti-trust case against baby bells. The court said there has to be a reasonable expectation that  the discovery process will bring support the allegations, says they have to show they deserve relief and not just should get it. you can’t have a “formulaic recitation of the elements". The court says it can’t be speculative Must be plausable and claim must have "heft".

Iqubal Case

Man accused of being terrorist says it was because of religion and race. Court says claim is speculative because the group of terrorists that they were looking for was mostly vomprised of his religion and ethnicity. Court says claim is speculative and doesn't meet Twombly standard.

Zielinski v. Philidelphia Piers

Case of the forklifts crashing into each other. Court says that because D didn't respond to the case they made an affirmative defense through silience and though they weren't the actual D the case wouldn't be amended to excluded them as a D and it would go forward.

The case of the man with the bad accent

Man denied job because of his accent. He sues as a Tile VII claim. Court says that it isn't frivilous under Rule 11  so it goes to trial. He appeals all the way to the Supreme Court which said other candidates had better qualifications so there was no discrimination.

Kraemer Case

Woman kicked out of her home and possesions taken after her fiance dies and suspects consipracy of her in-laws and the local sheriff. Trial court imposes Rule 11 sanctions saying that the claim was unfounded. It is appealled and court says they say that the PI he hired found enough info to take the case to court.

Arista Records Case

Filed a lawsuit against "Doe(s) 1-27" for downloading music illegally. Ds say that there is a valid claim and that it is a fishing expidition because there is nothing to show the songs were downloaded, only uploaded.

Zublake Case

Company refused to give up emails during discovery b/c they said they would be too expensive to produce. Court said burden of cost can be shifted in the request is narrow, who can bear the cost of production better and which party it benefits more. Court said that this sometimes has to be determine after some evidence has been discovered/produced.

Privileges to withhold information

Attorney Client Privilege: Any communications b/t client and attorney for legal counseling are protected. (only protects the communications not the facts).

Attorney Work Privilege:Protects from discolsure any work compiled in anticipation of litigation. (includes notes, audio records, interviews, etc.)

There are rare exceptions to both.

Upjohn Case

Hickman v. Taylor

Tugboat crashes. P's attorney interviews witnesses and survivors. D want the interview. P says no. Court say that there is Attorney work privilege to protect an attorney's plan of attack and to keep one side from abusing the other's work by just waiting for them to do the work and then requesting it in discovery (this would prevent a fair trial). Only when someone dies and it is impossible to get the info elsewhere can this rule be broken.

Ager Case

Ager was injured at birth due to rupture in uterine wall and mom dies. Sued the hospital. D sends P interrogatories regarding experts consulted. P refused to reply. Court says under Rule 26(b)(4) only experts who are going to testify at trial have to be disclosed unless there are exceptional circumstances (limited experts in the field).

Steps of the process and when motions can be made

Complaint (Rule 4,5)--> MTD (D)/Judgment on pleading (P) (Rules 8,9, 12) --> Discovery (Evidence, Rule 26, Fed. Rule 702, Zubalake, Ager, Upjohn, Hickman) --> MSJ (Rule 56) (So obvious it doesn't need to go to trial or too complex for a jury to understand) --> Trial (7th Ammendment) --> MJMOL (Rule 50) (P or D) --> Jury -->MJNOV/M for New Trial (Rule 59) (Tests burden of persuasion, jury had to have erred with the verdict)

Motion for Summary Judgment

Rule 56: On granted if there is no dispute to material facts and mover deserves it to be granted as matter of law. Motion is filed with a brief explain mover's evidence and non-mover can then refute or show opposing evidence. If there is then a dispute of material fact it can't be granted.

Arnstien Case

A case of copyright infringment. P says D had access to his apartment. Files MSJ after discvery. D signs an affidavit saying he didn't have access and never heard the music. Court says access to apt. is material fact based on credibilty so it has to go before jury.

Celotex Corp. Case

Wrongful death from asbestos. Celotex Rule. P has to point out why they have enough and that D doesn’t have any counter evidence in order to get MSJ granted, getting a MSJ is much harder than getting a motion to dismiss approved. In affirmative defenses D bears the burden of evidence to prove the evidence and that the other side cannot produce evidence against their evidence

Rule 5

Serving and Filing Pleading and Other Papers on Party(s)

Rules 4

Serving, forimg, amending a summons

Rule 10

Form of PLeading

Rule 29

Trial by Jury or by the Court

Rule 48

Number of Jurors, verdicts and polling

Rule 50

Judgment as a Matter of Law: after trial if it so clear that it should be rule one way based on all evidence presented at trial.

Rule 51

Instructions to the jury, objections, preserving a claim of error.

Rule 52

Findings and Conclusions by the Court, Judgment on Partial Findings

Rule 64

Seizing a Person or Property, specific kinds of remedies

7th Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Rule 38

A.      Right to Jury is preserved

B.      A party must demand a jury trial by requesting it in their complaint or in their answer

Rule 39

A.      Judge can have an advisor jury but the judge will decide for himself

Beacon Theaters Case

                                                                          i.      The court says common law issues should be tried first in order to protect the 7^th amendment and then the equity claims.

                                                                        ii.      Claims of common law are based on if there a money remedies and based on common law history.

Chauffeurs Case

The court says the to determine if a legal claim should go to jury use historical test and remedies to determine it.

       The historical test ran into problems because collective bargaining hadn’t existed in 1791 when 7^th amendment was written so the court said to use analogies

Markman Case

To determine whether a legal issue (mongrel issues) should go to jury use:

Historical test: Based on what was done in 1791

Precedent test: What was done after 1791

Functional test: does judge or jury have more info to determine it with uniformity.

Use one test after another

Rule 50

                                                                          i.   Credibility is left for the jury, so no credibility issues can been thought of nor weighing of the evidence when determining JMOL

                                    ii.      Evidence must be viewed in light most favorable to the person who DID NOT make the motion (just like in MSJ)

                                    iii.      Must make motion before it goes to the jury or after the close of trial

Souix City and Pacific R.R. Co. Case

                                                                          i.      The court says the jury’s role is for when it is between clearly negligent or clearly not negligent. If it is questionable whether it is negligent then it needs to go to the jury.

Tanner Case

Drunk and High jury. Court says you can't use affidavits from jurors after the case ends.

Spurlin Case

Issue of the faulty bus brakes. Court says under Rule 59

                                                                         a.      New trial only if there is a clear error (verdict goes against the great weight of the evidence, not just the preponderance of the evidence).

O'Gee Case

Stewardess hurt her back putting a buffet back. Court says the amount awarded was so high as to shock and offend the conscience.