CIVIL PROCEDURE
Professor Susan D. Franck
Fall 2014
I.
COURSE OBJECTIVES
Civil Procedure provides an introduction to the procedural rules governing civil
litigation in federal court. Civil proceedings, unlike criminal, involve private
parties (you, me, companies, unions, universities, governments, etc.) suing each
other. Criminal law, by contrast, always involves a government prosecuting
someone for an alleged violation of criminal law. Civil procedure also involves
contrasting “procedure” with “substance.” Civil procedure provides a framework
and specific rules governing the dispute resolution process. The substance of the
disputes—namely contract, tort, property and securities law—is taught in other
courses.
Beyond providing you with an overview of U.S. federal civil procedure, this
course provides you with the opportunity to develop and hone your legal
analytical skills. We will cover various topics in this course that loosely track the
progress of a civil suit, including: (1) jurisdiction, (2) venue, (3) vertical choice of
law (i.e. the Erie doctrine), (4) pleadings, (5) joinder, (6) discovery, (7) summary
judgment, and (8) judgment related issues. You will learn the policies behind civil
procedure and how to interpret and apply procedural rules, statutes and cases.
We will use the case method in civil procedure, but, more than in most other firstyear classes, you will engage in statutory interpretation, because the Federal
Rules of Civil Procedure raise interpretive issues similar to those raised by
statutes. Like all law school courses, this course will help you learn to “think like a
lawyer.” Civil procedure also gives you extensive opportunities to think about the
strategies, tactics, ethics, and etiquette of being an attorney.
II.
COURSE INFORMATION
A.
Methodology:
In order to facilitate your educational experience, this course uses The West
Educational Network (TWEN), available at http://lawschool.westlaw.com, as a
learning portal. The password for this class is: Jurisdiction. This Syllabus,
Power Point Presentations and other relevant materials will be available on
TWEN. I encourage the use of the “Discussion” feature to address issues raised
in class in further detail.
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B.
•
•
Required Course Materials:
A. BENJAMIN SPENCER, CIVIL PROCEDURE: A CONTEMPORARY APPROACH (4th
ed. 2014) (hereinafter CB).
A. BENJAMIN SPENCER, FEDERAL RULES SUPPLEMENT 2014-15 (2014)
(hereinafter SUPP.).
C.
Recommended Course Materials (on reserve in library where possible):
Hornbooks
• KEVIN CLERMONT, PRINCIPLES OF CIVIL PROCEDURE (2d ed. 2012).
• JOSEPH W. GLANNON, EXAMPLES AND EXPLANATIONS (7th ed. 2013)
• WILLIAM M. JANSSEN, FEDERAL CIVIL PROCEDURE LOGIC MAPS (2d ed. 2009).
• A. BENJAMIN SPENCER, ACING CIVIL PROCEDURE: A CHECKLIST (2011).
Non-Fiction
• JONATHAN HARR, A CIVIL ACTION (2006).
• GERALD M. STERN, THE BUFFALO CREEK DISASTER (2d ed. 2008).
There are also a series of web links on professional responsibility – such as
those for the Virginia State Bar Association, the American Bar Association Center
for Professional Responsibility and various blogs related to professional
responsibility. These are located on the TWEN site under “Web Links”.
D.
Office Hours:
I am available in my office in Room 486 on Mondays through Wednesdays other
than when I am teaching or preparing for class. To maximize the value of your
time and meet your needs more effectively, I encourage all students make
advance appointments so I am prepared to meet with you. You can contact me
through my office at 540/458-8133 or through email at francks@wlu.edu.
E.
Class Hours and Attendance:
Classes will be held Monday and Tuesday from 13:30-14:55 in Classroom A.
We will also have classes on Wednesday. In general, Wednesday sessions are
from 15:00-15:55; but there will be a few days when the Wednesday session will
be from 8:00-8:55. You can confirm the time of Wednesday sessions on TWEN.
I expect everyone to attend, and to be prepared for, each class session. Class
attendance is required by the law school’s policies, as well as my own. See
http://catalog.wlu.edu/preview_program.php?catoid=4&poid=142#Attendance.
Students who are not prepared should notify the instructor before class.
Students should also notify the instructor if any absence is contemplated, or if
illness or other special circumstances prevent attendance. Three unexcused
absences are allowed for whatever reason (including health related reasons).
Absences beyond this standard are only permitted with the permission of the
instructor in the case of an emergency and with appropriate documentation. The
instructor reserves the right to fail students who fail to attend regularly.
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F.
Laptop and Recording Policy
In order to promote an enhanced learning environment during your first semester
of law school in a challenging course, I do not permit the use of laptops,
netbooks, tablets, or smartphones, etc. in Civil Procedure. If you have one with
you for use in another class or between classes, please make sure that it is put
away before this class begins.
As a quid pro quo, I have changed my traditional policy of not recording classes.
I will therefore ensure that Civil Procedure classes are recorded and made
available
through
a
password
protected
web
portal
at
http://law.wlu.edu/lawmedia/page.asp?pageid=688. These recordings are in the
Windows Media Video format and playable on both PC and Macs with the
appropriate plug in. Students are, however, not to make personal audio or video
recordings of the course. Students are only permitted to use the official class
recordings for class-related purposes only.
G.
Grading:
Grading in Civil Procedure will be based upon: (1) the Final Examination, and (2)
class participation. Grades will be consistent with the required grading curve at
Washington and Lee Law School.
The Final Examination will be a four-hour, modified open-book, in-class written
exam. Further particulars related to formal exam instructions will be provided
later in the semester.
It is my policy to note which students make regular and meaningful contributions
to class discussions. I use these participation points for the purposes of letters of
recommendation and employment references. I also reserve the right to use
your class participation to raise a grade by one point (i.e., B+ to A-) in the event
of regular and useful contributions in class or on TWEN.
III.
ASSIGNMENTS
You are responsible for all of the assigned reading. The professor reserves the
right to reduce the scope of assignments. We will not cover every page of
assigned reading during our classroom discussions, but all of the assigned
content is fair game for the final exam. If we do not cover an issue in the
assigned reading but you would like to discuss it, please see me during office
hours or contact me to schedule a meeting.
Please note that “Assignment Number” on the Syllabus does not correspond to
class number. Unless otherwise noted in class, you should prepare the entire
next Assignment for the following class. Although subject to adjustment given the
pacing of class discussions, I have marked roughly on TWEN when we will cover
various units. I anticipate there will be some adjustment necessary to the timing.
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Assignment
Reading
Unit and Topics Covered
Number
Unit I – Personal Jurisdiction – Learning Objectives:
(1) Identify all locations where a court can acquire personal jurisdiction over a
party
(2) Determine whether a selected forum has personal jurisdiction over a party
(3) Make cogent arguments for and against the presence of personal jurisdiction
in any fact pattern
Unit I: Personal Jurisdiction
1
CB: 1-18,
2
19-31
Introduction and Overview of Course
Supp: 21
Historical Roots of Personal Jurisdiction –
Pennoyer
CB: 31-35,
Unit I: Personal Jurisdiction
35-44
3
Historical Roots of Personal Jurisdiction – Hess
Supp: 9, 12, 14
Modern Personal Jurisdiction – International
Shoe, Article IV(1), Amendments V, XIV
CB: 44-47,
Unit I: Personal Jurisdiction
48-70
Modern Personal Jurisdiction – State Long Arm
Statutes
Supp: Virginia
Specific Jurisdiction and Minimum Contacts –
Long
Arm
McGee, Hanson and World Wide Volkswagen
Statute (TWEN)
4
CB: 70-110
Unit I: Personal Jurisdiction
Specific Jurisdiction and Minimum Contacts –
Kulko, Keeton, Calder, Burger King, Asahi and
J. McIntyre v. Nicastro
5
CB: 111-21
Unit I: Personal Jurisdiction
Specific Jurisdiction and the Internet – Young,
Zippo and Hemi Group
6
CB: 122-32
Unit I: Personal Jurisdiction
Pure General Jurisdiction
Goodyear
7
– Perkins and
CB: 132-45,
Unit I: Personal Jurisdiction
145-58
Forms of General Jurisdiction related to
Property and Transient Jurisdiction – Shaffer
and Burnham
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Assignment
Reading
Unit and Topics Covered
CB: 158-66,
Unit I: Personal Jurisdiction
167-70
Consent to Personal Jurisdiction – Carnival
Cruise Lines
Number
8
Supp: 26
Personal Jurisdiction in Federal Courts – FRCP
4(k)
9
CB: 171-91
Unit I: Personal Jurisdiction
Constitutional Notice Requirements – Mullane,
Dusenbery and Jones v. Flowers
Unit II – Subject Matter Jurisdiction – Learning Objectives:
(1) Determine whether there is federal subject matter jurisdiction over a claim
asserted in an action
(2) Determine a party’s citizenship for purposes of evaluating diversity jurisdiction
(3) Determine whether a claim asserted in state court may be removed to a
federal court and whether a removed claim may be remanded to state court
Unit II: Subject Matter Jurisdiction
10
CB: 193-96
Supp: 8-9,
Introduction and Constitutional Framework –
U.S. Constitution Art. III § 2; 28 U.S.C. §§ 1332
(a-c), (e)
190-94
The Diversity of Citizenship Requirement – Mas
196-216
The Amount-in-Controversy Requirement – Del
Vecchio
11
CB: 216-17,
Unit II: Subject Matter Jurisdiction
217-19, 219-25
Federal Question Jurisdiction – Introduction
and 28 U.S.C. § 1331
Supp: 189
Constitutional Standards – Osborn
“Well-Pleaded Complaint” Rule - Mottley
12
CB: 225-34
Unit II: Subject Matter Jurisdiction
Federal Jurisdiction and the Essential Federal
Element Requirement – Grable & Sons,
American Well Works, Smith and Moore
13
CB: 234-40
Unit II: Subject Matter Jurisdiction
Supp: 199
Supplemental Jurisdiction – Introduction and 28
U.S.C. § 1367
The Constitutional Standard - Gibbs
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Assignment
Reading
Unit and Topics Covered
CB: 240-45
Unit II: Subject Matter Jurisdiction
Number
14
Supplemental Jurisdiction involving Pendent
and Ancillary Jurisdiction – Aldinger, Owen
Equipment and Finley
Modern Supplemental Jurisdiction
15
CB: 266-79
Unit II: Subject Matter Jurisdiction
Supp: 209-14
Removal Jurisdiction and General Standards –
Hays v. Bryan Cave and 28 U.S.C. § 1441(a)
Removal and Remand Procedures – 28 U.S.C.
§§ 1442, 1443, 1445, 1446, 1447, 1453
Unit III – Venue – Learning Objectives:
(1) Identify all districts where venue would be proper
(2) Determine whether a selected district is a proper venue
(3) Know whether an action can (and should) be transferred to another venue
(4) Determine which law applies to claims after they are transferred to another
venue
16
17
CB: 281-95
Unit III: Venue
Supp: 201-03
Original Venue – Kirby Morgan Dive Systems
and 28 U.S.C. § 1391
CB: 303-16
Unit III: Venue
Supp: 204-05
Change of Venue – Hoffman, Smith v. Colonial
Penn, Bolivia v. Phil Morris and 28 U.S.C. §§
1404, 1406
Unit IV– Erie Doctrine – Learning Objectives:
(1) Explain the Hanna / Erie doctrine in simple terms
(2) Determine whether federal or state law applies to various claims or legal
issues in federal court
(3) Make cogent arguments for and against the application of federal or state law
to any given claim or legal issue
18
CB: 331-37,
Unit IV: Erie Doctrine
337-50
Introduction and Historical Antecedents – Swift
v. Tyson and 28 U.S.C. § 1652
Supp: 225
Establishing the Erie Doctrine – Erie Railroad
Co.
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Assignment
Reading
Unit and Topics Covered
CB: 351-69,
Unit IV: Erie Doctrine
Number
19
370-82, 396-414 Development of the Erie Doctrine – York and
Byrd
The Rules Enabling Act and Modern Erie
Doctrine – Hanna, Walker and Shady Grove
Unit V – Pleading – Learning Objectives:
(1) Identify the required and permissible pleadings in an action
(2) Draft a basic complaint
(3) Understand the basic standard of what constitutes sufficiently stating a claim
(4) Determine how to serve a complaint on a defendant
(5) Raise defenses under Rule 12 in response to a complaint
(6) Draft an Answer in a Complaint
(7) Seek and oppose an amendment to a pleading
(8) Determine whether a proposed amendment may relate back to the time of the
filing of the original pleading
(9) Comply with the certification requirements of Rule 11 and raise challenges to
pleadings under Rule 11
20
21
22
CB: 415-20,
Unit V: Pleading
425-59
Complaints – Introduction – FRCP 8(a)
Supp: 37-38
Sufficiency of Complaints –Twombly, Iqbal,
Branham (TWEN) and FRCP 9
CB: 460-71
Unit V: Pleading
Supp: 21-29
Complaints and Service – Rio Properties and
FRCP 4
CB: 471-89
Unit V: Pleading
Supp: 37, 40-43 Respondent to the Complaint
Defenses and Objections under Rule 12 –
FRCP 12
The Answer – FRCP 9 and Zielinski
23
CB: 490-518
Unit V: Pleading
Supp: 46-47
Amending the Pleadings and Basic Rules –
FRCP 15(a) and Beeck
Relation-Back of Amendments – FRCP 15(c),
Krupski and Worthington
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Assignment
Reading
Unit and Topics Covered
CB: 518-23,
Unit V: Pleading
534-40
Ensuring Truthful Allegations – FRCP 11
Number
24
Supp: 38-40
Unit VI – Joinder – Learning Objectives:
(1) Determine whether distinct claims may be joined in a single action
(2) Determine whether a party is permitted to assert a claim in an action
(3) Determine whether multiple parties may join as plaintiffs in a single action
(4) Determine whether multiple parties may be joined as defendants in a single
action
(5) Determine whether a party may assert a claim against a non-party
25
CB: 543-45,
Unit VI: Joinder
545-55, 555-56
Claim Joinder of Multiple Defendants – FRCP
18(a)
Supp: 43-44
Counterclaims – FRCP 13(a), (b) and HeywardRobinson
Cross-claims – FRCP 13(g)
26
CB: 556-64,
Unit VI: Joinder
564-74, 574-98
Third-Party Practice – FRCP 14 and Lehman
Supp: 52-54
Permissive Party Joinder – FRCP 20 and
Mosley
Mandatory Joinder – Mastercard, Pimentel and
FRCP 19
Unit VII – Discovery – Learning Objectives:
(1) Determine whether requested material or information is within the permissible
scope of discovery
(2) Make cogent arguments for and against a discovery request
(3) Understand the basic contours of attorney-client privilege
(4) Understand the nature of the various discovery devices at your disposal and
the parameters surrounding those devices
(5) Understand how to raise a dispute over discovery
(6) Understand what conduct constitutes sanctionable discovery misconduct and
the range of sanctions available for such conduct
27
CB:
653-63, Unit VII: Discovery
664-79
The Scope of Discovery – FRCP 26(b)(1) and
American Roller
Supp: 62-68
Limits on the Scope of Discovery – Generally
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Assignment
Reading
Unit and Topics Covered
CB: 679-94
Unit VII: Discovery
Supp: 62-68
Burdens
and
Proportionality
–
26(b)(2)(C) and Gonzales v. Google
Number
28
FRCP
Proportionality Limits and E-Discovery – FRCP
26(b)(2)(B) and Zublake I
29
CB:
695-713, Unit VII: Discovery
714-19
Attorney-Client Privilege and Work Product –
FRCP 26(b)(3) and Hickman v. Taylor
Supp: 66-71
E-Discovery and Protected Materials
30
CB: 719-34
Unit VII: Discovery
735-47,
Discovery Devices
770-78
Discovery Disputes, Offenses and Sanctions Textron
Supp: 66-71
Unit VIII – Disposition without Trial and Judicial Control of Verdicts –
Learning Objectives:
(1) Determine whether a defendant has defaulted
(2) Pursue an entry of default and default judgment against a defendant
(3) Understand the standard for entry of summary objective
(4) Determine whether judgment as a matter of law would be appropriate in a
given case
Unit VIII: Disposition Without Trial and Judicial
31
CB: 779-94
Control of Verdicts
Supp: 112
Default and Default Judgments – FRCP 55 and
Colleton Preparatory Academy
32
CB: 826-51
Supp: 113-14
33
CB: 853,
904-05, 911-31
Supp: 104-05
Unit VIII: Disposition Without Trial and Judicial
Control of Verdicts
Summary Judgment – FRCP 56, Celotex,
Anderson and Matsushita
Unit VIII: Disposition Without Trial and Judicial
Control of Verdicts
Judgments as a Matter of Law – FRCP 50,
Reeves, and Unitherm Food Systems
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Assignment
Reading
Unit and Topics Covered
Number
Unit IX – Judgments and Preclusion Doctrines – Learning Objectives:
(1) Determine whether a claim is prohibited under the doctrine of res judicata
(2) Determine whether collateral estoppel prevents an issue from being litigated in
an action
Unit IX: Judgments and Preclusion Doctrines
34
CB: 961-63,
Introduction to Judgments
976-78,
Claim Preclusion (Res Judicata) - Nestor,
992-1029
Taylor and Semtek
35
CB: 1030-53
Unit IX: Judgments and Preclusion Doctrines
Issue Preclusion (Collateral Estoppel) –
Cromwell, Parklane Hosiery
IV. HINTS ON PREPARING FOR CLASS (a/k/a Tips for 1Ls)
A.
Preparing for Class:
Here are some useful things to think about while you read:
•
•
•
•
•
•
What principle(s) does each case in the CB stand for? Try to find the
sentence or two in the case that states the main principle. Think about the
policy behind it.
Was that principle followed, abandoned, or modified in subsequent cases
(including note cases)? If a new case follows a new path, was it due to
different facts? A change in the court’s view of the policy? New statutes
enacted by Congress or new decisions made by the Supreme Court?
Some combination of these?
How do the cases and the assigned statute/rule interact? Is the statute or
rule written clearly? Does the court give a fair interpretation of the statute
or rule? Does the court follow the background policy behind the statute or
rule?
How does this reading fit with prior readings? Are you learning details of a
subject you have been studying for a while, or are you moving on to
something new?
How would you answer the questions posed in the textbook/on the
assignment list?
What questions did no one ask or answer?
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There is no single way to take notes or brief cases. Draw upon your natural
strengths and learn as you go what works for you.
You are responsible for the note cases as well as the primary case(s), though
you will not usually need to fully brief the note cases – instead, pay attention to
what the note case adds to or changes about the primary case and which facts
are most important in answering that question. While you will need to adapt
these to your own learning style, I encourage you to use the following
“guidelines” as a baseline for orienting your own approach to preparing for Civil
Procedure. These “guidelines” may also serve you well in other courses.
(1) In order to profit from class, you must prepare adequately.
(2) You should take note of the chapter and section headings and subheadings in
the casebook to orient yourself to the concepts that will be discussed in class.
These will tell you the topic to which the assigned cases relate and where this
topic fits in the course overall.
(3) Learn a little about the topic before you start reading the assigned cases. This
can be done by reading in the CB or sections of a Hornbook that correspond
to the topics covered by the assigned cases. (All of the recommended texts
and other resources are on reserve in the library.) There is no single best text
or approach that I can recommend. For each topic, you will need to become
familiar with the resources available and decide for yourself what best serves
your needs.
(4) You should read carefully and brief each assigned case in the casebook.
Before you brief your first case, refer to the article “How to Read a Legal
Opinion” by Oren S. Kerr under the Course Materials tab of the course web
page on TWEN. You will need to tailor your case briefing in each of your
classes to adjust for the information you need to participate fully in the class
discussion of materials. This process of trial and error usually takes the first
couple of weeks of classes. Feel free to ask for help if you feel like you are
not “getting it” because you are unable to answer the questions we consider
in class.
(5) You will be encountering many words and phrases for the first time or of
which you have only a vague understanding. Look up every word you do not
know. It is tedious and slows down your reading, but it is essential to a full
understanding of the reading and an important habit to develop. This
instruction applies to legal jargon, to Latin phrases, and to any other word you
are not sure about. Surmising meaning from context is fine for reading
novels–but legal materials require a close reading and a full understanding.
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(6) For each section, read carefully the corresponding rule or statute from the
Rules and Statutes supplement book. Be careful, however, not to confuse the
commentary on the rule with the rule itself. We will concentrate on the rules
and cases interpreting them. It is important that you understand the rule well
enough to apply it. You should not attempt to memorize the rules or statutes.
You will have your rules book with you in your office in practice and will check
the exact wording as appropriate. Knowing that there is a rule that affects
what you want to do, being able to locate that rule quickly, and knowing how
to apply it are important. Being able to recite it is not.
(7) Read and prepare tentative answers to all problems and questions posed by
the CB. These materials not only assist in your understanding of the assigned
cases but serve to elaborate the doctrine and processes under study.
Attempting to apply the material you have just read to answer the author’s
questions also will assist you in figuring out whether you understand the
material you have just read.
(8) When you figure out the answer to a question or problem, make a note of the
basis for your answer and how you figured it out. You will frequently be asked
in class to explain how you arrived at an answer. (Hint: “It was written into my
book by the person I bought it from” is not a good answer.) As often as time
permits, writing out an answer in full sentences or a paragraph will also help
you get into the practice of expressing yourself in writing, which will inure to
your benefit at the end of the semester exams and beyond.
(9) Make notes of things that you do not understand or that puzzle you about the
reading as you do it. Bring those notes with you to class. Many times, your
questions will be answered by the class discussion. It they are not answered
by the end of class, do something to resolve them: post them in the Questions
and Discussion forum on the course web page, along with your tentative
conclusions, answers, or opinion; ask a classmate; or ask me. Don’t wait until
the end of the semester to figure out all the things you’ve been wondering
about all semester.
B.
Preparing for the Exam:
Ultimately, there is no single best method of studying for every person. Every
individual has or will develop techniques that seem to work best for him or her.
Until you have perfected your own skills, I would recommend experimenting with
two types of review namely day-to-day review and period review.
Day-to-day review is primarily a device for assuring yourself that you understand
the material you study as you go along. Through rehearsal of the material and
reconsideration on a daily basis, you can begin to fix more firmly in your mind the
important propositions developed in each course from day to day. Day-to-day
review also helps you connect each day’s work in the course with that of the
previous day and eliminate errors, omissions, and confusion in your notes.
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Periodic review is used to get a broad mental picture of the main divisions in the
course and, ultimately, of the whole course. The details you have learned in the
course must be put together and formed into a coherent whole. You need to
create for yourself a mental map or chart of the main classifications in the law,
the principal subdivisions within them, the further classes and subclasses, and
the interrelations and overlaps so that you can quickly classify problems and thus
make your way back to the specific cases and materials that dealt with that type
of problem. You are not merely memorizing the material you have studied. The
thing you are now looking for is the connection between all the individual
problems and rules–the central theme of the various chapters and the broad
general principles, policies, and reasoning on which the specific cases are
based. You are creating a synthesis of the materials that you have studied.
Periodic review is facilitated by the creation of a good outline that you have
prepared for yourself. A written outline not only gives you a tangible picture of the
organization of the course but also compels you to do the reviewing more
thoroughly, carefully, and systematically. Commercial outlines and outlines
prepared by upper-class students or sold on web sites may have some benefit,
but they do not substitute for an outline that you have prepared for yourself. The
real value of a written outline is in combing through your material and organizing
it in a systematic way yourself. The process should permit you to see where your
knowledge is incomplete or inaccurate so that you have time to fill in the missing
pieces before the examination. Periodic review must be just that–periodic–you
cannot leave the review process to the day or even the week before the
examination in the course and expect to get much out of it. I suggest that you
devote some time at least once each week to periodic review, including the
creation and revision of your course outline.
C.
One Caveat
Do not assume that the way you studied as an undergraduate will be
sufficient for law school. You soon will discover that the volume of reading and
the intellectual and physical demands that law school places on you will
overwhelm most of the techniques that got you through your undergraduate
studies. Law school will demand that you rethink your approach to studying.
While much of undergraduate study is concerned with the acquisition of
knowledge that can be recalled, law school demands that you develop not only
the skill of recall, but, in addition, be able to analyze and apply the knowledge
that is recalled. To learn how to use and apply the cases, rules, and principles
studied, you must develop the habit of systematic review throughout the
semester. You cannot pull it all together at the end. Please think creatively now
about how you can help yourself do better later.
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