CIVIL PROCEDURE I
Course No. 6003
Fall 2012
Professor Mitchell E. Zamoff
Office: N225
Office Hours: Thursdays 3:00-4:00 p.m. and by appointment
Phone: (612) 624-1869
E-Mail: mezamoff@umn.edu
Required Texts:
Marcus, Redish, Sherman & Pfander, CIVIL PROCEDURE: A MODERN APPROACH
(Thomson/West 5th Ed. 2009)
FEDERAL RULES OF CIVIL PROCEDURE
Hunter, THE POWER OF PROCEDURE: THE LITIGATION OF JONES v. CLINTON
Supplemental materials (to be distributed or made available on course website)
Optional Study Aids & Reserve Materials:
There are many hornbooks and commercial study aids on civil procedure. You may
find one or more of these materials useful in clarifying a topic that you find
confusing or in illustrating how certain concepts may be applied in different
contexts.
Two comprehensive, multi-volume civil procedure treatises (which are valuable
research tools for practicing litigators) are Moore’s Federal Practice and Federal
Practice and Procedure by Wright & Miller. Some popular single-volume works on
civil procedure include those authored by (1) Friedenthal, Kane & Miller; (2)
Glannon; (3) James, Hazard & Leubsdorf; (4) Teply & Witten; and (5) Shreve &
Raven-Hansen. You should always check the publication date of these materials as
the discussion in certain areas may be outdated in view of recent developments in
the law.
I do not object to you supplementing your assigned reading with hornbooks or
commercial outlines. However, you should be careful not to rely excessively on such
materials. The primary goal of your legal education should be to learn how to “think
like a lawyer” – that is, how to infer principles of law from primary materials such as
statutes, rules and cases. If you rely too heavily on study aids, you will not be
developing the skills you need to succeed as a lawyer or even as a taker of law
school exams. Moreover, study aids often, by necessity, oversimplify complex
questions. The greatest return on your investment will come from carefully reading
the assigned course materials, reviewing your notes, and discussing issues with
other students in the class.
Attendance
The Law School’s academic regulations (and the ABA accreditation rules) require
regular and punctual attendance. Even more importantly, the learning process in
law school demands it. A pattern of non-attendance will be taken into account in
grading the course and/or may result in a student’s withdrawal or dismissal from
the course. If you have to miss a particular class, please let me know in advance.
Preparation and Participation
In law school, as in law practice, there is no substitute for thorough preparation.
Even the most gifted litigator cannot successfully fake her way through an oral
argument, deposition or client meeting. The same is true here. Whether or not you
are called on in class, you will find it difficult to follow and participate in the class
discussion unless you are prepared. I expect you to be prepared to participate fully
in each class discussion.
I reserve the right to bump up (or, in rare cases, down) the final grade of a small
number of students based on class participation. Good class participation is
measured by quality rather than quantity.
Class Starting Time
Class will start promptly at 10:35. Late arrivals are disruptive so please avoid them
if at all possible. Like attendance, a pattern of tardiness may be taken into account
in the grading process.
Exam
There will be a four-hour, open-book, in-class examination on December 11 at 8:30
a.m. We will discuss the format of the exam in greater detail as the semester
progresses. You also will have the opportunity during the semester to prepare
answers to and discuss in class one or more sample exam questions to assist you in
preparing for the exam.
Lawyering Skills Exercises
During the course of the semester, you will complete three lawyering skills
exercises. These exercises will enhance your understanding of civil procedure by
exposing you to how the rules and concepts discussed in the cases are applied in
real-life litigation. While I will provide you with specific instructions relating to
each of these assignments as the semester progresses, the exercises will focus on (1)
drafting and answering a complaint; (2) drafting and answering discovery requests;
and (3) deciding (as would a judge) a motion for summary judgment. These
assignments will be evaluated on a “pass-fail” basis. Failing one or more of these
assignments will result in a reduction in your grade. Exceptional participation in
these exercises, like other exceptional class participation, could result in an increase
in your grade.
The lawyering skills exercises relating to complaints and discovery requests will be
completed in small groups. You will be assigned to a small group during the first
week of the semester. Each member of a small group working on a group exercise is
expected to do a share of the work on each group assignment.
Grading
As with all first-year classes, the grades in this course will distribute around a
prescribed average set by law school policy. Your final grade will be based
primarily on the final exam. I will raise your final grade for exceptionally high
quality class participation, including contributions to in-class discussions and
lawyering skills exercises. I will lower your final grade for a pattern of nonattendance or tardiness, inappropriate computer usage, inadequate preparation for
class and failure to complete any of the lawyering skills exercises.
TWEN Site
Please register for this course on TWEN. You have access to TWEN through the
Westlaw website, using the Westlaw login and password information you received
at orientation. You are responsible for ensuring that your e-mail address in TWEN
is correct. Assignment updates and supplemental reading assignments will be made
available to you via TWEN. You are encouraged to submit questions about the
course on the TWEN site so I may post answers that are accessible to the entire
class. If you would prefer that your question appear anonymously, you can e-mail it
to me and request that I post it for you.
Rules Regarding In-Class Conduct
Devices capable of generating noise (including phones, watch alarms and PDAs)
must be turned off during class. Laptop computer speakers must be muted. Use of
video games, personal e-mail, instant messaging, or unauthorized Internet surfing
during class is prohibited. Taping of classes is allowed only by permission from the
Instructor.
Disability Accommodation Information
Students with disabilities should consult the University’s Office of Disability Services
(612-626-1333) and the Law School’s Assistant Dean of Students Office regarding
any necessary classroom or exam-related accommodations.
COURSE OUTLINE AND ASSIGNMENTS
Overview
This course covers the rules, practice and procedure governing civil litigation. The
topics we will study include:






Due Process. The constitutional principles of fairness that govern the design
of procedural systems.
Pleading. The plaintiff’s complaint (which initiates civil litigation) and the
defendant’s response to that complaint.
Joinder. The addition of claims or parties to the lawsuit.
Discovery. The process of learning facts from other parties in litigation.
Case Resolution and Adjudication. The conclusion of the case, through
either (a) a judicial ruling on a motion; (b) a settlement or alternative form of
dispute resolution (such as arbitration and mediation); or (c) a verdict at
trial.
Finality and Preclusion. The formal termination of the case and its
aftermath, including appeals and the doctrines that prevent parties from
relitigating claims or issues decided in prior cases.
As an elective, Civil Procedure II adds further details about this process, including
the jurisdictional power of courts to hear particular types of cases; the
determination of which legal rules apply to a case; and the special considerations
involved in class actions. We will only have time to briefly preview these topics
during Civil Procedure I. I strongly recommend you take Civil Procedure II if you
are interested in becoming a civil litigator.
Day-by-Day Assignments
(“CB” refers to the Marcus, Redish casebook)
CLASS
DATE
TOPIC
ASSIGNMENT
Introduction and Overview
1
Wed. 9/5
An overview of
procedure; choosing a
system of civil
procedure
CB 1-19; FRCP 1
2
Thurs. 9/6
Due process and the
purpose of procedure
U.S. Constitution
Amendments 5, 7 & 14;
Caperton v. A.T. Massey;
Goldberg v. Kelly
Describing and Defining the Dispute
3
Fri. 9/7
The Complaint
CB 114-27; Hunter 7-17
(skim); FRCP 3, 7, 8(a), 10
4
Wed. 9/12
The Complaint –
Specificity and
Consistency in Pleading
CB 128-37; FRCP 8(d), 12(e),
12(f)
5
Thurs. 9/13
The Distinction Between
Factual and Legal
Allegations
CB 151-74; FRCP 9(b),
12(b)(6); 15 U.S.C. 78u4(b)(1)-(2) (PSLRA)
Heightened Pleading
Standards
6
Fri. 9/14
The Modern View of
Notice Pleading
CB 174-98; Ashcroft v. Iqbal
7
Wed. 9/19
The “Golden Rule” of
Civil Procedure – Rule
11
CB 137-51; FRCP 11; Christian
v. Mattell, Inc
8
Thurs. 9/20
Drafting the Complaint
Hunter 7-17; Complaint
drafting lawyering skills
exercise
9
Fri. 9/21
The Defendant’s
Response to the
Complaint – Rule 12
Motions and Default
CB 198-207; Hunter 21-36;
FRCP 12, 55, 60
10
Wed. 9/26
The Answer,
Counterclaims and
Crossclaims
CB 207-20, 274-75; FRCP
8(b)-(d), 13(a)-(b), (g)
11
Thurs. 9/27
Voluntary Dismissal and
Amendments to
Pleadings
CB 220-37; Hunter 64-72;
FRCP 15, 41; Krupski v. Costa
Crociere SPA
12
Fri. 9/28
Drafting the Answer
Hunter 51-62; Answer
drafting lawyering skills
exercise
Redefining the Dispute – Adding Parties and Claims
13
Wed. 10/1
Real Party in Interest
Permissive Joinder of
Claims and Parties
14
Thurs. 10/2
Compulsory Joinder of
Parties
Impleader
CB 238-40, 244-52; FRCP
17(a), 18, 20, 21
CB 252-74; FRCP 14, 19;
Temple v. Synthes Corp.,
Republic of the Philippines v.
Pimentel
15
Fri. 10/3
Intervention and
Interpleader* [CP2]
CB 275-97; 28 U.S.C. 1335
16
Wed. 10/8
Class Actions* [CP2]
CB 305-31 (through n.4);
FRCP 23
17
Thurs. 10/9
Practice Exam Questions
Obtaining Information for Trial – The Discovery Process
18
Fri. 10/10
Discovery tools and their CB 343-47, 352-68; FRCP
limitations
26(a)(1), 30-36
19
Wed. 10/15
Managing the Scope and
Burden of Discovery
CB 368-87; Hunter 102-110;
FRCP 26(b)(1)-(2), 26(c)
20
Thurs. 10/16
Drafting discovery
requests
Hunter 78-92; Moss v. Blue
Cross
Discovery request drafting
practical exercise
21
Fri. 10/17
Privileged and protected
information
CB 387-408; Hunter 93-99;
FRCP 26(b)(3)
22
Wed. 10/22
Discovery from experts
CB 409-19; FRCP 26(a)(2),
26(b)(4)
23
Thurs. 10/23
Spoliation and EDiscovery
FRCP 26(b)(2) Advisory
Committee Note re 2006
Amendment; Zubulake v. UBS
Warburg LLP; Quinby v.
WestLB AG
24
Fri. 10/24
Fact investigation
CB 419-29; Hunter 123-32;
FRCP 26(e), 26(g), 37
Discovery disputes and
sanctions
The Pretrial Resolution of Civil Disputes
25
Wed. 10/29
Judicial Supervision of
Trial and Promotion of
Settlement; ADR
CB 100-13, 471-76, 506-17;
Hunter 169-71; FRCP 16, 68
26
Thurs. 10/30
Summary Judgment –
Overview of Rule 56 and
Governing Standards
CB 430-54; FRCP 56
27
Fri. 10/31
Summary Judgment –
Meeting the Burden of
Production
CB 455-68; Scott v. Harris
(and YouTube video
discussed in opinion)
28
Wed. 11/7
Evaluating Summary
Judgment Motions
Hunter 147-64
Summary Judgment
Lawyering Skills Exercise
The Resolution of Civil Disputes at Trial
29
Thurs. 11/8
Overview of Trial
Right to Jury Trial in
Civil Cases
CB 523-33, 585-94; FRCP 47,
48; Chauffers etc. v. Terry
30
Fri. 11/9
Judgment as a Matter of
Law
CB 595-611; FRCP 50
31
Wed. 11/14
Judgment as a Matter of
Law
CB 611-32
32
Thurs. 11/15
New Trial
CB 632-48; FRCP 59
Provisional Remedies*
[CP2]
Jurisdiction, Venue and Choice of Law (A Preview)
33
Fri. 11/16
Personal jurisdiction*
[CP2]
CB 700-07, 713-19, 756-66
34
Wed. 11/21
Venue and subject
matter jurisdiction
(diversity jurisdiction)*
[CP2]
CB 830-37, 850-64; 28 U.S.C.
1332(a)-(c), 1391, 1404
35
Wed. 11/28
Subject matter
jurisdiction (federal
question and
supplemental
jurisdiction) and choice
of law* [CP2]
CB 865-73; 888-96; 924-35;
28 U.S.C. 1331
Finality and Preclusion
36
Thurs. 11/29
Appeals* [CP2]
Overview of Claim and
Issue Preclusion
CB 1016-21, 1030-31, 107980, 1090-93, 1094-97; Hunter
175-80
37
Fri. 11/30
Claim Preclusion
CB 1097-1127; FRCP 41(b)
38
Tues. 12/4
Issue Preclusion
CB 1145-67
39
Wed. 12/5
Preclusion: Parties
Bound by Judgment
CB 1167-92
* [CP2] topics are covered in detail in the Civil Procedure II elective course.