Professor Perritt

hperritt@kentlaw.edu

(312) 906-5128

Office: Room 713

Tueday & Thursday 6:00-8:25 P.M.

Fall 2004

Room 510

                                                                                             

                                                                                             

CIVIL PROCEDURE

COURSE INFORMATION

COURSE CONTENT

Civil Procedure is a five-credit one semester course in the law of dispute resolution in federal and state courts.

REQUIRED COURSE MATERIALS

·        Marcus, Redish & Sherman, Civil Procedure: A Modern Approach (3d ed. 2000)

·        Federal Rules of Civil Procedure (latest Educational Edition) to be read in conjunction with the Marcus, Redish & Sherman text.

·        Supplementary materials available on the Website. www.kentlaw.edu/perritt/courses/civpro.

SYLLABUS

Date

Unit

Subject

Assignment (pages in Marcus, Redish & Sherman)

24 Aug

 

Constitutional entitlement to civil procedure;

Enforcing judgments

27-42

80-85; 93-96 Fed.R.Civ.P. 69

Form for writ of execution

Recognition and enforcement statutes:

Uniform Recognition of Foreign Money Judgments Act

Uniform Enforcement of Foreign Judments Act

28 U.S.C. sec. 1963

 

 

CHAPTER IX. CHOOSING THE FORUM - GEOGRAPHICAL LOCATION

666-836

26 Aug

1

The Traditional Formulation: The ‘Power” Theory of Jurisdiction,

667-686

Harris v. Balk diagram (MS Power Point)

Harris v. Balk diagram (jpeg)

Note on "paying twice" in Harris v. Balk

Optional:

Blackstone on service of original process

IL post-judgment garnishment statutes

IL pre-judgment attachment statutes

31 Aug

3

The Shift to Minimum Contacts, and the States’ Response - Long Arm Statutes

686-697; 697-706 NY long arm statute (for hypothetical); KTA diagram (for hypothetical)

Optional

Note on limited v. special appearances

Answer to question on process servers in Illinois

2 Sep

4

Refining the Minimum Contacts Analysis

 706-725; 728-740 n.2; 741-748 n.1; 750-756; Note on stream-of-commerce-theory

(Optional after class: Yahoo (district court), Yahoo appeal, and Australia Dow Jones)

Venn diagram illustrating analytical factors for PJ;

7 Sep

6

Presence of Defendant’s Property

760-778; In-rem jurisdiction provisions of Anticybersquatting Consumer Protection Act

Optional after class: FMC Corp. v. Continental Illinois Nat'l Bank, No. 87 C 9640, 1988 WL 116825 (N.D. Ill. Oct. 21, 1988)

9 Sep

7

Personal Service Within the Jurisdiction

778-796

14 Sep

9

The General Jurisdiction Alternative

796-804

G.D. Searle

Lakin

Gator.com (panel decision, pending rehearing en banc)

Optional: graph Darrin Halcomb improved graph

16 Sep

10

No class

 

21 Sep

10

Consent, Jurisdictional “Ouster” by Consent - Forum Selection Clauses

 804-815

optional: generalization of Carnival Cruise Lines to diversity cases--Jones v. Weibrecht

optional, for, or after this class:

Construct a flowchart/decision tree of personal jurisdiction; email it to civprodocs@kentlaw.edu; be willing to have it displayed and discussed in class

23 Sep

12

The Requirement of Notice

815-824

28 Sep

13

Venue and Discretionary Decline of Jurisdiction

 825-832; 833-845; 28 U.S.C. §1391, 1404

Hypo: Be prepared to argue either side of Part II of the amicus brief prepared for Wood Industries v. KTA (pertaining to forum non conveniens). If you need more facts, determine exactly what facts and how you would get them.

Optional:

Venn diagram

The following illustrate state venue statutes.

Illinois venue statute

Illinois long-arm statute

Illinois corporation residence statute

Illinois local action venue statute

NY venue rule - general

NY venue rule - public authorities

 

 

CHAPTER X CHOOSING THE FORUM - STATE v. FEDERAL COURT,

 846-920

30 Sep

15

Diversity of Citizenship,

Federal Question

846-857; 28 U.S.C. § 1332

857-860 n.2; 862-874 n.1; 28 U.S.C. § 1331

Optional:

Examples of grants of power to state trial courts (IL, MD, PA, VA)

Hohfeldian analysis

Note on complete diversity in class actions

5 Oct

18

The Penumbra of Federal Jurisdiction: Supplemental Jurisdiction,

 878-901 n.2; 28 U.S.C. § 1367

[we will review the basic claim- and party-joinder rules, Fed.R.Civ.P. 18, 20, 24, 13, 14, in class; you may wish to peruse them beforehand, but you are not expected to know them well]

Hypothetical diagrams (Powerpoint)

Note on claim aggregation in diversity cases and supplemental jurisdiction

Note on complete diversity requirement and supplemental jurisdiction

7 Oct

19

Removal

 905-920; 28 U.S.C. §§ 1441, 1446-1447

Hypothetical diagrams (Powerpoint)

Optional:

HHP removal note

Judicial hieararchies (Powerpoint)

12 Oct

21

CHAPTER XI. CHOOSING THE LAW TO BE APPLIED IN FEDERAL COURT, (The Erie Doctrine)

MID-TERM REVIEW

Swift v. Tyson, p921;

Erie RR v. Tomkins, p922-929

Be prepared to apply Erie to recent complex hypotheticals

For review lecture: review notes and assignments preceding this class

 

 

CHAPTER III. DESCRIBING AND DEFINING THE DISPUTE,

 118-219

14 Oct

24

The Historical Evolution of Pleading,

118-128, Browse Fed.R.Civ.P. 2-11;

Common law pleading examples (declarations)

Chappell v. Lichtman per Chitty on Pleading

Defamation

Account

Negligence

Consider the adequacy of the three alternative complaints in Lymon v. Loscudo; and of the two claims in Chappell v. Lichtman (Illinois is a fact pleading jurisdiction)

Elements of fraudulent misrepresentation

Elements of international interference with contractual relations

IL small claims pleading rule

IL pro-se small claims form

Contents of small claims form

(optional: Harry Emmanuel Scozzaro, Jr., Notice Pleading Under the Federal Rules of Civil Procedure Following Sweirkiewicz v. Sorema, 26 Am. J. Trial Advoc. 385 (2002) (good summary of common law pleading and comparison with Fed.R.Civ.P.))

19 Oct

25

Describing and Testing the Plaintiffs Claim,

128-152; 171-174 n.1; Fed.R.Civ.P. 8, 9, 16

Summons in Civil Action form

Optional:

Kindred v. Panter complaint

Pup v. Butzer Collections complaint

21 Oct

27

Practical drafting exercise

Watch client interview (Web video)

(send each of the following documents to civprodocs@kentlaw.edu)

Draft complaint (due today, before class)

Draft Fed.R.Civ.P. 26(a) disclosures (due 9 November)

Draft Initial Plaintiff Interrogatories to Defendant under Fed.R.Civ.P. 33 (due 11 November)

Optional:

Sample complaints from the real world: ACLU, FCC, FOIA, NARM, SEC

26 Oct

28

Defendant’s Response, voluntary dismissal

 182-204; 204-206 Fed.R.Civ.P. 12

Hypo

Optional:

Sample answers: McConnell, CIA, Vitf

Motions to dismiss: e.g.1, e.g.2, e.g.3

28 Oct

30

Amendments to Pleading

Wrap up pleading

 207-219; Fed.R.Civ.P. 15; review earlier pleading material

 

 

V. OBTAINING INFORMATION FOR TRIAL

 320-402

2 Nov   No class (election day)  

4 Nov

33

The Promise and Reality of Broad Discovery, The Discovery Devices

320-330; 330-346; skim Fed.R.Civ.P. 26-37, concentrating on Rules 26(b)-(g), 37

Be prepared to participate in a mock deposition of (a) Officer Smith , assuming the deposition was noticed by Bennaza's's lawyer (you), and (b) a mock deposition of the employer of the hypothetical motorcycle-accident victim, Christianson v. Bicycle Messengers, noticed by the plaintiff's lawyer (you). Be prepared to conduct direct and cross examination, and to know the authority in the deposition rules for what you propose to do in the deposition and for what your opponent may try to do and you oppose.

Complaint served on defendants on Bennaza v. Smith

Basic information on the ADA

Optional:

Proposed rule changes pertaining to electronic discovery (caution: big .pdf file)

Examples: Rule 26(a) disclosures, (alternative format), interrogatories, answers to interrogatories, request for production, request for admissions, notice of individual deposition, notice of multiple depositions, deposition transcript

Subpoena form

 

9 Nov

34

Rule 26(a)(1) disclosures

Rule 26(a)(1) drafts due before class today; email to civprodocs@kentlaw.edu

Review Rule 26(a)(1) drafts

Consider discovery strategies in hypothetical motorcycle-accident victim case: Christianson v. Bicycle Messengers

11 Nov

36

Interrogatories, requests for production, requests for physical or mental examination and requests for production

Managing the Scope and Burden of Discovery,

Draft interrogatories due before class today; email to civprodocs@kentlaw.edu

Review interrogatory drafts (you do not need to write definitions; just write the questions)

Consider discovery strategies in hypothetical motorcycle-accident victim case: Christianson v. Bicycle Messengers 

346-357; 359-360 nn. 7-8; Fed.R.Civ.P. 26(b)(2)

Optional:

Example of discovery plan

Judge Kimba Wood's model discovery plan

16 Nov

37

Exemptions From Discovery,

360-391

ABA Model Rules of Professional Conduct 4.2

Consider likely application of doctrine from assigned cases and notes and of Rule MRPC 4.2 in Christianson v. Bicycle Messengers

18 Nov

38

Enforcing the Discovery Rules-Sanctions

Investigation-Fact Gathering Without Judicial Assistance; recap of major discovery events

 394-402; Fed.R.Civ.P. 37 

391-394; review pp xi-xviii in Rules Pamphlet

Optional:  

Do your own timeline of events in a civil case between filing of the complaint and a motion for summary judgment; send it, if you wish, to civprodocs@kentlaw.edu

District of Maine ADA case docket sheet

District of Iowa ADA case docket sheet-jury

Eastern Districtof VA ADA case docket sheet

 

 

CHAPTER VI. ADJUDICATION BEFORE TRIAL: SUMMARY JUDGMENT,

403-443

23 Nov

39

The Nature of the Summary Judgment Device: The Concept of Burden Shifting,

403-406; 414-423; 426-427 nn.6-7; Fed.R.Civ.P. 56

Hypothetical for class

Bennaza v. Smith: Deposition of Officer Smith - transcript (MS Word version)

Christianson v. Bicycle Messengers, Inc.: deposition of Sean Imperiato, owner of Bicycle Messengers, Inc.-transcript (MS Word version)

Optional:

Example of summary judgment in ADA case, affirming and reversing on two different counts

25 Nov

 

No class (Thanksgiving)

 

30 Nov

41

Pretrial management

Note on Assault Intent -- question from class on 23 Nov.

444-450; Fed.R.Civ.P. 26(f), 16, Official Form 35

N.D. Ill. Local Rule - Standing Order on pretrial procedures

Sample pretrial orders: No. 1; No. 2

1 Dec.  

THE TRIAL

Photos of trial, Fall, 2004

Photos of trial, Spring 2004

497-506; Fed.R.Civ.P. 16, 49-52

Pre-trial order, Bennaza v. Smith

Proposed jury instructions, Bennaza v. Smith

Anonymous course evaluation forms will be distributed 10 minutes before normal end of class

7 Dec

44

(Makeup) REVIEW

Lecture (review all notes and assignments)

RECOMMENDED SECONDARY MATERIALS

James, Hazard, Leubsdorf, Civil Procedure (4th ed. 1992).

Shreve & Raven-Hansen, Understanding Civil Procedure (3rd ed. 2001).

Wright, Federal Courts (5th ed. 1994).

Wright, Miller & Cooper, Federal Practice and Procedure (1969), kept up-to-date by cumulative pocket supplements (2001).

Avoid Gilbert’s 

FINAL EXAMINATION

The final examination in this course will be given on Friday, 17 December 2004, at 6:00 PM and at no other time. It will last three hours.

In the final examination, you are responsible for all the materials discussed in class and in the assigned readings. Obviously, the examination cannot touch upon all that material, but anything we do in class, anything you see in your court visit, and anything in the assigned readings may be tested. You may bring any materials, whether commercially prepared or not, to the final exam, but successful performance on the exam will not require original research. Prepare for the exam as though it were “closed-book.”

ATTENDANCE

Much of the material and most of the legal analysis in this course is not contained in the assigned readings. Consequently, class attendance is an indispensable part of the course. Failure to attend regularly will result in exclusion from the course and a grade of “E” Sporadic absences will result in a lowering of your grade, in the discretion of the instructor. The instructor reserves the discretion to determine what constitutes “regularly” and “sporadic.” The only safe course is to attend every class.

TARDINESS

I strongly discourage tardiness and reserve the power to lower your grade for tardiness.

TEACHING ASSISTANT

Matt Topic, 2L, is the Teaching Assistant for the course. His email address is mtopic@kentlaw.edu. He will be available every Tuesday from 5 PM to 6 PM, in the 2d floor cafeteria area, for questions and will give supplementary presentations on certain material.

HATS

Do not wear hats in class.

WANDERING IN AND OUT OF CLASS

Once you are present in the classroom, please stay there, unless you have a genuine emergency. If an emergency requires you to leave the classroom, do not return.

CLASS PARTICIPATION

I teach “Socratically.” Every student is expected to be prepared in every class. Any student may be called on at any time. Volunteering is encouraged. There is no “right” answer; only cogent and persuasive arguments, backed up by legitimate legal authority.

ATTENDING A FEDERAL HEARING OR TRIAL

Attending a federal hearing or trial in United States District Court is a mandatory requirement for credit in the course. You may do this at any time during the semester. After attending, you must send me an email, to civprodocs@kentlaw.edu, briefly describing what you observed and explaining how it relates to one or more specific subjects in the syllabus.

FINAL GRADE

Your final grade will be determined by how well you do on the final exam, except that I reserve the power to decrease your final grade for unsatisfactory classroom participation, failure to complete the drafting exercises satisfactorily, failure to complete the court visit, or excessive absenteeism or tardiness. I also reserve the power to increase your final grade by one-half of a grade for outstanding classroom participation.

OFFICE HOURS & APPOINTMENTS

I welcome interaction with students. I will be happy to make an appointment to see any of you individually or in groups. I do not have specific office hours. If you want to meet, please set up an appointment by emailing me at hperritt@kentlaw.edu, calling me at (312) 906-5098, calling my assistant, Ms Patricia O’Neal at (312) 906-5128, or by seeing me before or after class.

WEBSITE

http://www.kentlaw.edu/perritt/courses/civpro

The Website contains the syllabus, supplementary materials, old exams and model answers. Please check the Website regularly, particularly before you begin preparing for a particular class and again before coming to class. I will update it regularly. Note that course coverage probably was materially different in years for which exams and model exams are published.

E-MAIL

I may communicate with you by e-mail at any time throughout the semester. Check your e-mail regularly. If you would like to communicate with me via e-mail, please feel free to do so.