Civil Procedure II
Spring 2015, Professor Sample
Mondays 10:10am-Noon
1. Syllabus: Reading assignments are set forth in this syllabus. The class-by-class
breakdowns represent approximations. During the semester, there will be alterations,
deletions and additions. Any changes will be announced in class.
2. Texts: The case book that we will be using is the 11th edition of Civil Procedure Cases
and Materials by Friedenthal, Miller, Sexton & Hershkoff. Rules: The Rules Supplement
associated with the Friedenthal book that many of you used in the Fall Semester is great.
Most of the materials in the supplements are also available via various free resource
collections if you don’t mind searching for them. I will also supply additional materials.
No other book is required. Optional commercial materials may be helpful or harmful
depending on the manner in which they are used. For now, the critical point is that
relying on outside sources instead of the course materials is to follow a well-worn path to
the destinations of delusion (first) and disaster (second).
3. Preparation & Participation: You are expected to read and think about the assigned
material before each class. Likewise, you are expected to contribute to the classroom
discussions on both a voluntary and involuntary basis. I will call on you.
4. Quality of participation may impact your grade at the margins. As a practical matter,
given the size of the section, most students who attend regularly and who are prepared
(not perfect, but rather prepared and thoughtful will get exactly the same, or very close to
the same participation grade. That said, poor attendance or participation that distracts
from the class or excellent participation that genuinely and uniquely contributes to the
entire class’s learning experience may impact your participation grade at the margins.
5. TWEN: There is a TWEN page for this course. It is very important that you sign up for
the page, as I will use it periodically to communicate with the entire class. To register (1)
go to lawschool.westlaw.com (2) click on TWEN (3) choose “add course” and add this
course. If you were in my section in the fall semester, you do not need to do this again.
Once you have registered you will have the ability to engage in substantive discussions
with your fellow students. I will also use TWEN to post course materials. I encourage
you to use the TWEN list serve to discuss substantive matters relating to the course. I
may monitor these discussions as a matter of interest, but will not be intervening as a
matter of course.
6. Attendance: Because our class meets only once a week for an extended session,
absences are particularly problematic. Regular, on-time attendance is the expectation.
7. Laptops: You are allowed to use your laptops for note-taking purposes. Using laptops
for other purposes is prohibited, mostly because it is distracting for those around you.
1 8. Office: My office (463-7236) is in room 215 of the law school. You are welcome to drop
by any time. I will determine my office hours based on your section’s schedule early in
the semester. The best way to reach me is via e-mail (james.sample@hofstra.edu).
9. We will almost certainly make adjustments to the schedule of assignments. The
following reflects our default presumption and/or points of departure. Some modules will
take longer than others — sometimes out of interest (or lack thereof) and sometimes out
of struggle (or lack thereof). Likewise, there are a couple of topics that I would very
much like to cover, that are not reflected in the schedule below. Depending on how the
semester progresses and on your collective input, we may trim one or more of the
modules below, so as to incorporate one or more of those additional topics. Then again,
we might not. In sum, we won’t be afraid to audible at the line of scrimmage if
appropriate, but the game plan is as follows:
Module
1
Notice, Service & the Right to be Heard (***Read for First Class***)
Sign up for TWEN Page
Read Mullane v. Cent. Hanover Bank & Trust Co., and notes following pp. 201215. Pay special attention to Dusenberry, Greene, and Jones in notes.
Read Federal Rule 4
Read pp. 216- 221 (mechanics of notice)
Read notes on pp. 227-231
Read “Opportunity to Be Heard” pp. 243-249
Read Mitchell v. W.T. Grant Co., pp. 249-252
Read North Georgia Finishing, Inc. v. Di-Chem, Inc., pp. 252-254
Read Connecticut v. Doehr, pp. 249
2
Pleading
Read p. 554
Read Federal Rules 8 and 9
Read Dioguardi v. Durning, pp. 558/9-563
Read excerpt from Conley v. Gibson, p. 562
Read paragraph on Federal Rule 9(b), p. 563
Read Note 1 on Leatherman v. Tarrant County Narcotics, pp. 563
Read Note 3 on Swierkiewicz v. Sorema N.A., pp. 565
Read Bell Atlantic Corporation v. Twombly, pp. 568-579
Read Garcia v. Hilton Hotels Int’l, Inc., pp. 579-584
Read pp. 584-586
Read Ashcroft v. Iqbal, 129 S.Ct 1937 (2009)
Read pp. 586- mid 590 (Pleading special matters)
3
Responding to the Complaint, with an Emphasis on Motions to Dismiss for
Failure to State a Claim
Read Federal Rule 12
Read Intro and American Nurses’ Association v. Illinois, pp. 602-609
Read (as background) last full paragraph p. 610
2 Read Note on Denials, pp. 612
Read Zielinski v. Philadelphia Piers, Inc. pp. 612-615
Read Note on Improper Forms of Denial, pp. 617
Pleading: Affirmative Defenses
Read Ingraham v. United States pp. 618-621
Read Taylor v. United States, pp 621-622
Pleading; Amendments
Read Federal Rule 15
Read Beeck v. Aquaslide ‘N’ Dive Corp., pp. 623-629
Read Worthington v. Wilson, pp. 630-634
Pleading: Deterring Frivolous Pleadings
Read Surowitz v. Hilton Hotels, pp. 636-639
Module
4 (TBD)
5
Policing the Pleading Process and Managing the Case
Read Federal Rule 11
Read pp. 640-642
Read Hadges v. Yonkers Racing Corp., pp 642-651
Read Federal Rule 16
Read pp. 927-931
Read Velez v. Awning Windows, Inc., pp. 932-937
Notes and Questions, pp. 937-939
Read Payne v. S.S. Nabob, pp. 949-952
Joinder: The Parties and Their Claims
(unless specifically indicated below, notes & questions within joinder are optional)
Read Introductory handout on Joinder (to be distributed)
Read Temple v. Synthes Corp., pp. 30-32
Read Introductory Note, pp. 652
Joinder of Claims: Historical Limitations
Read Harris v. Avery, pp. 652-654
Joinder: Permissive Joinder of Claims
Read M.K. v. Tenet, pp. 655-657
Joinder: Counterclaims
Read Intro to Counterclaims, pp. 657-658
Read U.S. v. Heyward-Robinson, pp. 658-662
Joinder: Cross-Claims
LASA per L’Industria v. Alexander, pp. 668-672
Joinder of Parties: Who may sue and be sued
Read Ellis Canning Co. v. Int’l Harvester Co. pp. 675-676
Read Note on Capacity/Standing, pp. 677-678
Joinder of Parties: Historical Limitations
Read Ryder v. Jefferson Hotel, pp. 679-681
3 Joinder: Permissive Joinder of Parties
Read M.K. v. Tenet, pp 682-684
Read Tanbro Fabrics v. Beanuit Mills, pp. 685-687
Joinder: Traditional Concept of Indispensable Parties
Read Bank of California Nat. Ass’n v. Superior Court, pp. 688-693
Joinder: Required Joinder of Persons under Rule 19
Read Provident Tradesmens Bank & Trust Co. v. Patterson, pp. 693-701
Joinder: Impleader
Read Jeub v. B/G Foods, Inc., pp. 705-707
Joinder: Interpleader
Read Pan American Fire & Casualty v. Revere, pp. 722-727
Read State Farm Fire & Casualty v. Tashire, pp. 727-732
Joinder: Intervention
Read Introductory Note on Intervention, pp. 733-734
Read Smuck v. Hobson, pp 734-738
5
Discovery Intro
Read DiMichel v. South Buffalo Ry. Co., pp. 37-41
Read Alderman v. Baltimore & Ohio R. Co., pp. 42-44
Discovery: Concepts and Mechanics
Read pp. 826-829
Read Federal Rule 26(b)
Read In re Petition of Sheila Roberts Ford, pp. 829-832
Read Kelly v. Nationwide Mutual Insur. Co., pp. 832-Note 1, pp 835
Read Note 3, p. 836-Note 5, p. 837
Read Note on Proportionality, pp. 837
Read Marrese v. American Acad. Orthopaedic Surgeons, pp. 837-844
Read Note on Discovery of Party’s Financial Worth and Insurance Coverage, p.
853
Read Federal Rule 26(a)
Federal Rule of Civil Procedure 26(f)
Mechanics:
Read (skimming is likely sufficient for class purposes) pp. 853-869
E-Discovery:
Read pp. 872-878
Physical and Mental Examinations:
Read pp 878
Read Schlagenhauf v. Holder, pp 879-884
Materials Prepared in Anticipation of Trial:
Read Hickman v. Taylor, pp 896-905
Read Introductory Material on Privileges and Work Product, pp. 907-908
6
Adjudication without Trial: The Motion for Summary Judgment
Read Federal Rule 56
Read pp. 958-961
4 Read Adickes v. S.H. Kress & Co., pp. 970-973
Read Celotex Corp. v. Catrett, pp. 973-981
Read Scott v. Harris, pp. 981-983
7
Judge and Jury Intro
Read Alexander v. Kramer Bros. Freight Lines, Inc., pp. 45-48
Read Diniero v. United States Lines Co., pp. 48-52
Read Texas Employers’ Insurance Association v. Price, pp. 53-56 Read Lavender
v. Kurn, pp. 57-62
Judge and Jury continued:
Read pp 997-1000
Read Beacon Theatres, Inc. v. Westover, pp 1002
Read Dairy Queen, Inc. v. Wood, pp 1009
Read Chauffers, Teamsters and Helpers Local 391 v. Terry, pp. 1026
Taking the case from the jury:
Read Federal Rules 50 and 59
Read pp. 1070-1076
Read Reid v. San Pedro (to be distributed)
Read Pennsylvania RR v. Chamberlain (to be distributed)
Read Lind v. Schenley Indust. (to be distributed)
8
Appeals and Preclusion Intro
Read Hicks v. United States, pp. 62-66
Read Des Moines Navigation & R. Co. v. Iowa Homestead Co., pp. 67-70
Preclusion Continued
Read pp. 1249-1251
Read Rush v. City of Maple Heights, pp. 1251-1255
Read Jones v. Morris Plan Bank of Portsmouth, pp. 1263-1267
Read Note on Issue Preclusion, pp. 1272
Read Note on Persons Benefitted and Persons Bound by Preclusion, The
Traditional Model, p. 1305
Read Bernhard v. Bank of America Nat. Trust & Sav. Ass’n, pp. 1306-1312, and
especially Note 5
Read Parklane Hosiery Co. v. Shore, pp. 1313-1319, through Note 2
Read Note on Binding Nonparties, pp. 1321
Read Taylor v. Sturgell, pp 1326-1332
Floating modules if time permits TBD
5