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Professor Perritt Office: Room 713 |
Tuesday & Thursday 6:00-8:25 P.M. |
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Course number: 258-051 Fall 2011 |
Room 510 |
CIVIL PROCEDURE
COURSE INFORMATION
Civil Procedure is a five-credit one semester course in the law of dispute resolution in federal and state courts.
· Marcus, Redish, Sherman & Pfander, Civil Procedure: A Modern Approach (5th ed.2009)
· Federal Rules of Civil Procedure (latest Educational Edition) to be read in conjunction with the Marcus, Redish, Sherman & Pfander text.
· Supplementary materials available on the Website. www.kentlaw.edu/perritt/courses/civpro.
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Date |
Subject |
Assignment (pages in Marcus, Redish & Sherman) |
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23 Aug |
Constitutional entitlement to civil procedure; Enforcing judgments |
78-82; Fed.R.Civ.P. 69, 65 Judge Friendly's list of elements of procedural due process (will be used in class) Optional: IL pre-judgment attachment, and post-judgment garnishment statutes IL pre-judgment attachment statutes IL post-judgment garnishment statutes
Optional: Recognition and enforcement statutes:
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CHAPTER IX. CHOOSING THE FORUM - GEOGRAPHICAL LOCATION |
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25 Aug |
The Traditional Formulation: The ‘Power” Theory of Jurisdiction, |
680-700 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
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30 Aug |
The Shift to Minimum Contacts, and the States’ Response - Long Arm Statutes |
700-719; NY long arm statute (for hypothetical); KTA diagram (for hypothetical) Optional |
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1 Sep |
Refining the Minimum Contacts Analysis |
719-728 (omit Brennan dissent); 743-752 (omit Stevens dissent); 766-775; J. McIntyre Manufacturing (Word) (.pdf) Venn diagram illustrating analytical factors for PJ; |
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6 Sep |
Presence of Defendant’s Property Hypos for class (html) (Word version) (pdf) |
781-799 |
| 8 Sep |
Personal Service Within the Jurisdiction |
799-811 |
| 13 Sep |
The General Jurisdiction Alternative Backed Up by Sovereignty ©2008 Henry H. Perritt, Jr.
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Optional: graph Darrin Halcomb improved graph
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15 Sep |
Consent, Jurisdictional “Ouster” by Consent - Forum Selection Clauses |
819-825 optional: generalization of Carnival Cruise Lines to diversity cases--Jones v. Weibrecht optional (for use in class): Actual forum selection clauses (.html) (Word) Hypothetical trial-by-combat forum selection clause (.html) (Word) re judicial enforcement of arbitration awards:
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 |
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20 Sep |
The Requirement of Notice |
825-830; Fed.R.Civ.P. 4 - pay particular attention to procedures for serving individuals and corporations within the U.S. NY case approving service of process by email Federal case approving service of process by email for use in class: |
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22 Sep |
Venue and Discretionary Decline of Jurisdiction |
830-849; 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: The following illustrate state venue statutes. Illinois corporation residence statute |
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27 Sep |
Diversity of Citizenship, Federal Question |
850-880 n.2; 28 U.S.C. § § 1331, 1332 Optional: Examples of grants of power to state trial courts (IL, MD, PA, VA) |
| 29 Sep |
No class |
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4 Oct |
The Penumbra of Federal Jurisdiction: Supplemental Jurisdiction Hypo: We will start with the hypothetical lawsuit from 30 September, with the additional assumption that one or more ptfs has filed civil actions under the federal Wiretap Act and federal Stored Communications Act |
888-910; 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 complete diversity requirement and supplemental jurisdiction |
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6 Oct |
Removal Submajur ©2008 Henry H. Perritt, Jr. |
914-923; 28 U.S.C. §§ 1441, 1446-1447 Hypothetical for discussion in class (.html) (Word) new Hypothetical diagrams (Powerpoint) Hypothetical diagrams (Powerpoint) (old-disregard) Optional: Judicial hieararchies (Powerpoint) After class: Counterclaims as basis for jurisdiction: See Holmes Group Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 914-915 (2002) (holding that well-pleaded complaint rule requires that federal question jurisdiction exist or not based on original complaint; cannot be based on counterclaims, which are pleaded in the answer). Optional: |
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11 Oct |
CHAPTER
XI. CHOOSING THE LAW TO BE APPLIED IN FEDERAL COURT, (The Note on Erie and supplemental jurisdiction Lex Locus Delicti ©2008 Henry H. Perritt, Jr. |
924-931 Be prepared
to apply For review lecture: review notes and assignments preceding this class |
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CHAPTER
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13 Oct |
The Historical Evolution of Pleading |
114-125, Browse Fed.R.Civ.P. 2-12; Common law pleading examples (declarations) Stipp v. Jackson per Chitty on Pleading Consider the adequacy of the three alternative complaints in Fratamico v. Nigrelli; and of the two claims in Stipp v. Jackson (Illinois is a fact pleading jurisdiction) Elements of fraudulent misrepresentation Elements of international interference with contractual relations (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.)) |
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18 Oct |
Describing and Testing the Plaintiffs Claim |
125-158; Fed.R.Civ.P. 8, 9, 11, 16 Summons in Civil Action form Rutherford v. Used Car Salesman Berrios: Employee 1 v. Company A Optional: |
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20 Oct |
Practical drafting exercise Transferred intent (you were right!) (.html) (Word), but the causation/substantial certainty issue remains with respect to the curb/ground contact |
Watch client interview (Web video) (You need RealPlayer on your computer for this to work. You can download RealPlayer from www.real.com). (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 1 November) Draft Initial Interrogatories under Fed.R.Civ.P. 33 (due 3 November) Optional: Sample complaints from the real world: Viacom v. YouTube, ACLU, FCC, FOIA, NARM, SEC |
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25 Oct |
Defendant’s Response, voluntary dismissal |
198-215; Fed.R.Civ.P. 12 Optional: Sample answers: Viacom v. Youtube, McConnell, CIA, Vitf |
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27 Oct |
Amendments to Pleading Wrap up pleading Sad Tale ©2008 Henry H. Perritt, Jr. |
222-237; Fed.R.Civ.P. 15; review earlier pleading material Optional: IL rule for amending pleadings Optional: Rule 15 flowchart (ppt) pdf version |
| 1 Nov |
V. OBTAINING INFORMATION FOR TRIAL Rule 26(a)(1) disclosures Retrospective on transferred intent in Bennaza case: .html, Word, .pdf |
344-368; skim Fed.R.Civ.P. 26-37, concentrating on Rules 26(a)-(g), 37 Complaint in hypothetical motorcycle-accident victim case: Christianson v. Bicycle Messengers Rule 26(a)(1) drafts due before class today; email to civprodocs@kentlaw.edu You should should prepare Rule 26(a)(1) disclosures for the following party:
Review Rule 26(a)(1) Consider discovery strategies for your party in your case |
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3 Nov |
Interrogatories, requests for production, requests for physical or mental examination and requests for production Managing the Scope and Burden of Discovery Note on privilege against self-incrimination and civil discovery
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Note that the police officer's name is J. Ryan ("LawDogg") Lawlis. Draft interrogatories due before class today; email to civprodocs@kentlaw.edu (you do not need to write definitions; just write the questions) Review Rule 33 (Same client assignments as for Rule 26(a)(1) disclosures); if you represent the plaintiff prepare interrogatories to be propounded to your respective defendants; if you represent a defendant, prepare interrogatories to be propounded to your respective plaintiff and, if you think appropriate, to your co-defendant. Consider discovery strategies for your party in the respective case. 368-387; Fed.R.Civ.P. 26(b)(2) Optional: Judge Kimba Wood's model discovery plan Good case on destruction/"spoilation" (html) (Microsoft Word) |
| 8 Nov. |
The Promise and Reality of Broad Discovery, The Discovery Devices Lawlis deposition part 1 .mp3 file Lawlis deposition part 2 .mp3 file
Pix on Facebook: http://www.facebook.com/media/set/?set=a.10150378290724476.368337.506219475&type=1&l=1b4e4252ba
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357-360; Fed.R.Civ.P. 30, 32 Amended Bennaza complaint .html Word(use this for the deposition and subsequent proceedings). Be prepared to participate in a mock deposition of (a) Officer J. Ryan ("LawDogg") Lawlis, assuming the deposition was noticed by Bennaza's's lawyer, and (b) a mock deposition of the Melanie Kibbler, the owner of Bicycle Messangers, Inc., Christianson's employer, Christianson v. Bicycle Messengers, noticed by the plaintiff's lawyer. 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. 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 Counsel for depositions Bennaza: Berrios/Olif Officer Lawlis: Ferrell & Chappo Kenilworth: Daniels & Fister Christianson: Crump & Nevitt Bicycle Messengers: Ourednik Yamahonda: Marasso & St. Clair Deponents: Melanie Kibbler, owner of Bicycle Messengers J. Ryan
("LawDogg") Lawlis, Kenilworth police officer |
| CHAPTER VI. ADJUDICATION BEFORE TRIAL: SUMMARY JUDGMENT | ||
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10 Nov |
First hour: Exemptions From Discovery Compare Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) (declining to hold that opposing counsel is absolutely immune from being deposted; suggesting three-part test; reversing district court and finding that work-product doctrine permitted attorney to refuse to answer deposition questions) with In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71-72 (2d Cir.2003) (preferring more flexibility than Shelton provides). Second hour: Meet in your client clusters: choose a "lead discovery counsel'; determine what further discovery is appropriate after the deposition; discovery counsel must submit a report detailing further discovery to civprodocs@kentlaw.edu; Consider likely application of doctrine from assigned cases and notes and of Rule MRPC 4.2 and make sure your discovery counsel comments on it Discovery counsel must clearly indicate all counsel in the cluster who participated |
387-419 |
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15 Nov |
Enforcing the Discovery Rules-Sanctions Investigation-Fact Gathering Without Judicial Assistance; recap of major discovery events Smoking Gun ©2008 Henry H. Perritt, Jr. Bid on a role in the Chicago-Bar Association play "Giving Ground" on 14 December! Talk it up with everyone you know! Here's a promotional video: http://www.facebook.com/video/video.php?v=10150388105684476 A website provides more information: www.givinggroundplay.com.
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422-429; Fed.R.Civ.P. 37 review pp xi-xviii in Rules Pamphlet Select (in class) lead counsel(s) for summary judgment argument on 22 November 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 |
| 17 Nov |
Pretrial management Hypo for class (revised 17 Nov 2011) |
471-476; Fed.R.Civ.P. 26(f), 16, Official Form 35 Example of Rule 16(b) scheduling order: Viacom v. YouTube N.D. Sample pretrial orders: No. 1; No. 2
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| 22 Nov |
The Nature of the Summary Judgment Device: The Concept of Burden Shifting |
430-434; 440-450; 451n.2; Fed.R.Civ.P. 56 "Standardized" Bennaza complaint .pdf Word .html Vroom (dealer salesman) affidavit Drool (Yamahonda engineer) affidavit Bicycle Messengers answers to Christianson interrogatories Yamahonda answers to Christianson interrogatories Christianson answers to Bicycle Messengers interrogatories Christianson answers to Yamahonda interrogatories Bennaza's Opposition to Summary Judgment Consider depositions in Bennaza and Christianson cases (posted on ___ November entry) Argue summary judgment motions before "Judge" Keck; only the defendants have filed motions for summary judgment Counsel: Bennaza: John Darragh Lawlis: Lindsey Rauschenberg & Rodney Harris Kenilworth: Ramsin Canon Christianson: Michael Anderson & Cole Richter Bicycle Messengers: Ryan Laurie Yamahonda: James Konstantopoulos "Judge" Keck's standing order (.html) Optional: Example of summary judgment in ADA case, affirming and reversing on two different counts |
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24 Nov |
No class (Thanksgiving) |
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29 Nov |
(makeup day per Academic Calendar) Appellate jurisdiction, procedure, and standards of review
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28 U.S.C. § 1291; Fed.R.App. P. 3 1016-1021; 1030-1033; 1048-1050 (discovery orders); 1068-1073 n.3; 1079-1080 (Supreme Court); 1081-1090 |
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1 Dec |
[Last class] REVIEW (Thursday classes meet per Academic Calendar) |
Lecture (review all notes and assignments) course evaluation questionnaires will be distributed a few minutes before the end of class
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James, Hazard, Leubsdorf, Civil Procedure (5th ed. 2001).
Shreve & Raven-Hansen, Understanding Civil Procedure (3rd ed. 2001).
Wright & Kane, Law of Federal Courts (Hornbook Series) (2002).
Wright, Miller & Cooper, Federal Practice and Procedure (2008), kept up-to-date by cumulative pocket supplements.
Avoid Gilbert’s
The final examination in this
course will be given on Friday, 9 December 2011, at
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.”
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.
I strongly discourage tardiness and reserve the power to lower your grade for tardiness.
Do not wear hats in 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.
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 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.
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 for outstanding classroom participation.
All songs are copyrighted 2008 by Henry H. Perritt, Jr. Modofac is a registered trademark. Permission is given to Chicago-Kent students to download, perform, and distribute the musical works and sound recordings to their classmates and friends. All other rights reserved. CDs are available from Professor Perritt
Michael L. Mason, mmason@kentlaw.edu, 3L, is the Teaching Assistant for the course. He will announce office hours after the semester begins.
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
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.
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.
